EXAMINATION 


OF  A 


MINORITY  REPORT 


MADE  BY  THE 


HON.  ORYILLE  CLARK, 


TO  THE 


SENATE  OE  THE  STATE  OF  NE¥-Y0RK, 

ox  THE 

MEMORIALS 

OF  INHABITANTS  OF  THE  CITY  OF  NEW-YORK,  IN  RELATION  TO 

TRINITY  CHURCH. 


ALBANY: 

PRINTED  BY   C.  VAN  BENTHUYSEX  AND  CO. 


1846. 


Digitized  by 

the  Internet > 

Archive 

in  2013 

http://archive.org/details/examinationofminOOdurs 


EXAMINATION 


OF  A 


MINORITY  REPORT 


MADE  BY  THE 


HON.  ORVILLE  CLARK, 


TO  THE 


SENATE  OF  THE  STATE  OF  NEW-YORK, 


ON  THE 


MEMORIALS 

i 


OF  INHABITANTS  OF  THE  CITY  OF  NEW-YORK,  IN  RELATION  TO 


TRINITY  CHURCH. 


ALBANY: 

POINTED  BY  C.  VAN  BENTHUYSEN  AND  CO, 


1846. 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


EXAMINATION 


Of  a  minority  report  made  by  the  Hon.  Orville  Clark,  to 
the  Senate  of  the  State  of  New-York,  on  the  memo- 
rials of  inhabitants  of  the  city  of  New-York,  in  rela- 
tion to  Trinity  Church. 


The  committee  on  charitable  and  religious  societies  of  the  Senate  of 
the  State  of  New-York,  to  which  were  referred  the  memorials  and  re- 
monstrances on  the  subject  of  legislative  interference  with  the  charter 
of  Trinity  church,  having  disagreed  in  their  conclusions,  two  reports 
have  been  made  by  its  members.  One,  by  a  majority  of  the  committee 
recommending  "  that  no  legislative  action  be  had  on  the  subject,  and 
that  the  prayer  of  the  petitioners  be  denied;"  the  other  by  the  Hon. 
Orville  Clark,  a  senator  from  Washington  county,  recommending  the 
repeal  of  the  act  of  1814.  This  report  of  Mr.  Clark's  occupies  thirty- 
five  pages,  and  contains  so  many  extraordinary  statements,  and  what  are 
deemed  erroneous  representations  of  facts  and  documents,  and  so  many 
inferences  believed  to  be  entirely  unwarranted,  as  to  require  an  exposi- 
tion of  its  errors  and  fallacies  by  some  one  whose  leisure  will  permit  that 
thorough  examination  which  it  is  hardly  possible  for  a  member  of  the 
Legislature  to  bestow,  amid  the  numerous  and  various  subjects  which  at 
this  time  occupy  attention. 

With  the  design,  and  in  the  hope  of  throwing  some  light  on  what 
Mr.  Clark  has  rendered  obscure,  and  of  assisting  an  intelligent  and  im- 
partial judgment,  these  pages  have  been  prepared  and  are  respectfully 
submitted  for  candid  consideration.  They  will  be  confined  to  an  exami- 
nation of  Mr.  Clark's  positions,  and  any  repetition  of  the  very  able 
views  of  the  majority  of  the  committee  will,  as  far  as  possible,  be  avoid- 
ed. Nor  will  an  attempt  be  made  to  notice  many  remarks  and  state- 
ments in  Mr.  Clark's  report,  which  seem  calculated  rather  to  excite  and 
inflame  prejudice  than  to  aid  judgment,  and  which  have  a  very  remote, 
if  any,  bearing  upon  the  questions  at  issue.  This  course  is  adopted  to 
avoid  excessive  prolixity,  with  entire  confidence  in  the  intelligence  of 
those  for  whose  use  these  pages  are  intended,  and  in  tneir  determina- 


4 


tion  to  decide  and  act  uprightly  and  conscientiously.  In  the  style  of 
these  remarks,  an  effort  will  be  made  to  imitate  the  modest  and  unassu- 
ming manner  of  the  report  of  the  majority  of  the  committee,  rather 
than  the  somewhat  positive  tone  of  Mr.  Clark's  report ;  and  care  will  be 
taken  not  to  affirm  that  to  be  undeniable,  which  admits  of  serious  ques- 
tion, or  to  pronounce  that  impossible,  which  may  have  actually  occurred. 

Although  the  other  members  of  the  committee  have  differed  from 
Mr.  Clark  so  entirely  in  their  conclusions,  yet,  a  casual  reader  would 
infer  from  the  language  of  his  report,  that  the  committee  had  really 
agreed  on  every  important  point,  and  concurred  in  the  rseults.  Thus 
in  p.  7  it  is  said  "your  committee  have  no  doubt  or  hesitation  in 
stating  the  necessary  effect  of  the  treaty  of  peace  of  1783,"  &c;  at 
p.  10,  "  But  your  committee  are  unable  to  admit  the  force  or  even 
the  propriety  of  these  observations."  In  p.  12,  the  language  is  quite 
inaccurate  "  your  committee  will  state  the  grounds  on  which  they  recom- 
mend the  entire  repeal  of  the  act  of  1814."  Surely  the  committee  has 
made  a  very  different  recommendation.  And  the  report  at  p.  35,  thus 
closes:  "your  committee  in  conformity  to  the  views  they  have  express- 
ed, ask  leave  to  introduce  a  bill."  Without  pursuing  these  references 
further,  sufficient  appears  to  show  the  carelessness  with  which  the  re- 
port has  been  ushered  before  the  public,  and  to  excite  a  doubt  whether 
there  may  not  be  similar  carelessness  in  other  equally  important 
portions  of  it.# 

It  is  quite  remarkable  that  Mr.  Clark  wholly  repudiates  the  grounds 
on  which  the  memorialists  placed  their  case  and  solicited  the  interven- 
tion of  the  Legislature,  and  utterly  denies  the  sufficiency  of  those 
grounds  to  justify  the  repeal  of  the  act  of  1814.  He  says  "  that  the  ques- 
tions which  they  involve  are  precisely  those  that  the  Legislature  have 
no  right  to  determine  or  [even]  consider."  (p.  33.)  "  If  the  memorial- 
ists really  possess  the  right  that  they  claim,  they  should  bo  left  to  assert 
and  vindicate  them  in  a  court  of  justice,  since  it  is  the  exclusive  pro- 
vince of  a  court  of  justice  to  establish  the  validity  of  their  claims."  (p. 
33.)  As  this  is  the  same  conclusion  expressed  by  the  majority  of  the 
committee  in  their  report,  it  would  after  all,  seem  that  the  committee 
were  in  fact  unanimous.    Still,  Mr.  Clark  proceeds  to  say  that  "  the 

•  It  is  due  to  the  Hon.  Senator  to  state,  that  the  newspapers  containing  the  account  of 
the  presentation  of  the  minority  report,  added  that  Mr.  Clark  before  reading  it,  apo- 
logised for  its  being  in  the  form  of  a  majority  report,  and  engaged  to  alter  it  in  that 
respect  before  delivering  it  to  the  printer.  And  the  bill  reported  by  him,  purported 
to  be  brought  in  by  Mr.  Clark  from  the  minority  of  the  committee.  Still,  to  readers 
who  may  never  see  the  bill  or  the  newspaper  account,  the  report  as  printed  is  calcu- 
latedto  convey  an  entirely  erroneous  impression. 


5 


committee  are  of  opinion  that  the  access  of  the  memorialists  to  a  court 
of  justice  should  no  longer  be  barred,  and  that  the  impediment  to  the 
proper  assertion  of  their  rights,  created  by  the  act  of  1814,  should  be 
removed." 

The  majority  of  the  committee  expressly  deny  that  any  obstacles  exist 
to  the  legal  assertion  of  the  rights  of  the  memorialists,  because  if  the 
act  of  1814  is  unconstitutional,  the  courts  will  so  declare.    Mr.  Clark 
has  not  stated  with  explicitness,  or  indeed  at  all,  how  the  act  of  1814 
bars  the  access  of  the  memorialists  to  a  court  of  justice,  or  how  it  is  an 
impediment  to  a  proper  assertion  of  their  rights.    This  is  a  point  which 
has  been  again  and  again  presented  to  the  memorialists  and  their  advo- 
cates, and  their  attention  invited  to  it.    They  have  been  asked,  the  Le- 
gislature has  been  asked,  why  interpose  at  all,  when  there  is  no  occasion 
for  it  ?    And  yet  no  answer  is  given — no  necessity  for  the  interposition 
is  shown.    The  elaborate  argument  of  Mr.  Clark  furnishes  none,  except 
that  the  act  of  1814  is,  in  his  opinion,  a  bad  precedent  of  judicial 
legislation.    He  contends  that  it  transcended  the  legitimate  powers  of 
the  Legislature,  that  it  violated  rights  secured  by  compact,  but  asserts 
that  the  memorialists  should  "  be  left  to  assert  and  vindicate  them  (those 
rights)  in  a  court  of  justice and  yet  he  would  repeal  an  act  which,  if  his 
argument  proves  any  thing,  is  a  perfect  blanK,  is  no  bar,  and  presents  no 
impediment  whatever  to  the  legal  assertion  of  those  rights.    There  are 
doubtless  many  bad  precedents  on  the  statute  book,  and  some  laws  which 
our  courts  have  pronounced  unconstitutional.    But,  until  the  present  in- 
stance, it  is  confidently  believed  no  bill  has  been  reported  to  expunge 
those  precedents  or  to  repeal  those  laws,  merely  because  they  were 
"  mischievous  in  their  effects,"  as  examples,  and  therefore  should  be 
rendered  "harmless  by  removal."    Confidence  in  subsequent  legisla- 
tures has  been  felt,  that  their  own  reason  and  intelligence  would  prevent 
their  being  led  astray  by  unsound  precedents  or  void  laws.    Mr.  Clark 
does  indeed  say,  (p.  27,)  that  "were  it  certain  that  courts  of  justice 
would  give  no  effect  to  the  act  of  1814,  the  protection  of  the  memo- 
rialists could  not  be  said  to  require  its  repeal."    But,  he  says  it  is  con- 
tended that  the  act  is  an  absolute  judgment  of  a  court  of  competent  ju- 
risdiction and  ultimate  authority ;  and  then  he  says,  the  question  arises 
whether  such  an  effect  can  be  given  to  the  act  without  a  violation  of  the 
principles  of  our  constitution?"    And  he  concludes  that  if  this  question 
must  be  answered  in  the  negative,  that  is,  if  the  act  of  1814  be  uncon- 
stitutional,— the  only  effectual  mode  of  preventing  an  unjust  application 
of  it,  is,  to  repeal  it.    With  great  deference  this  course  seems  to  be  quite 
a  non  sequitur.    If  the  act  be  so  clearly  unconstitutional,  there  is  no 


6 


danger  whatever  of  its  being  unjustly  applied  by  the  courts.  And  the 
very  ground  on  which  he  thus  recommends  the  repeal  of  the  act,  in- 
volves the  necessity  of  this  Legislature  deciding  that  it  was  unconstitu- 
tional, and  ought  not  therefore  to  be  applied  to  the  case  for  which  it 
was  intended ;  that  is,  for  the  Legislature  to  assume  the  functions  of  a 
court.  How  this  is  to  be  reconciled  with  the  declaration  at  p.  33  of 
the  same  report,  already  quoted,  that  the  Legislature  has  no  right  "  to 
determine  or  consider"  the  question  whether  the  act  of  1814  was  un- 
constitutional, must  be  left  for  others  to  determine.  But  the  object  of 
these  remarks  is  not  so  much  to  exhibit  what  are  supposed  to  be 
the  contradictions  of  Mr.  Clark's  report,  as  to  show  that  Mr.  Clark 
himself  cannot  urge  the  repeal  of  the  act  of  1814  without  calling  upon 
the  Legislature  to  act  judicially. 

This  part  of  the  subject  ought  not  to  be  dismissed  without  a  comment 
upon  the  extraordinary  assertion  above  quoted  from  p.  27,  that  the  re- 
monstrants and  their  counsel  contend  that  the  effect  to  be  attributed  to 
the  act  of  1814,  is  that  of  an  absolute  judgment  of  a  court  of  compe- 
tent jurisdiction  and  ultimate  authority.  In  no  one  of  the  published 
papers  is  any  such  principle  contended  for,  and  the  gentlemen  who 
attended  before  the  committee  absolutely  deny  that  they  ever  advanced 
such  an  idea."*  The  argument  was,  and  has  been  throughout,  and  is 
still,  that  it  was  competent  to  the  Legislature,  in  its  legislative  capacity, 
ivith  the  consent  of  the  other  'party  lo  the  compact,  so  to  amend  it,  as  to 
remove  doubts,  and  prevent  difficulties  growing  out  of  a  change  in  the 
state  of  things.  Any  further  exposition  of  this  argument  is  postponed 
until  we  come  to  consider  that  subject  distinctly,  in  a  subsequent  part  of 
these  remarks. 

Dissatisfied,  apparently,  with  the  ground  thus  assumed,  that  the  act 
was  unconstitutional,  and  therefore  should  be  repealed — a  ground,  as 
already  stated  which  he  repudiates  in  another  part  *of  his  report,  Mr. 
Clark  proceeds  to  state  in  a  formal  manner,  somewhat  imposing,  the 
grounds  on  which  as  he  says  the  committee,  but  in  fact  himself  only, 
recommends  the  repeal  of  the  act  of  1814.  The  first  reason  given  at  p. 
12,  13,  &c,  is  that  the  consent  of  the  Legislature  to  the  act  of 
1814,  was  induced  by  a  misrepresentation  of  material  facts  ;  that  the 
Legislature  was  misled — that  both  the  fact  and  the  law  of  the  case 

*  It  was  urged  by  one  of  them  who  last  addressed  the  committee,  that  whether  the 
law  of  1811  was  or  was  not  unconstitutional,  was  a  question  of  law  proper  for  the 
decision  of  the  judicial  department  of  the  government;  and  he  thought  it  strange 
that  the  Legislature  should  now  be  called  upon  to  make  this  judicial  decision  by  those 
who  complained  of  the  act  of  1814,  upon  the  ground  that  it  was  a  judicial  act  which 
the  Legislature  ought  not  to  have  performed. 


7 


were  misunderstood  in  consequence  of  the  improper  manner  in  which 
they  were  presented. 

This  is  a  very  grave  accusation,  and  ought  to  he  sustained  by  proofs 
the  most  incontrovertible. 

The  misrepresentation — the  deception,  consists,  according  to  Mr. 
Clark's  report,  in  the  applicants  for  the  act  of  1814,  omitting  to  refer  in 
terms  and  distinctly  to  the  colonial  act  of  1704,  as  the  charter,  and  the  only 
subsisting  charter  of  Trinity  church  ;  or  as  stated  at  p.  16,  that  the  act 
of  1704  was  "virtually  suppressed"  that  it  was  not  referred  to  in  the 
petition  of  Trinity  church,  nor  in  the  pamphlets  of  Bishop  Hobart  or 
Col.  Troup,  except  that  it  was  mentioned  in  a  note,  in  the  latter;  and 
that  the  Legislature  were  induced  to  suppose  that  it  had  been  repealed, 
and  that  the  charter  of  1697  was  operative  until  the  act  of  1784. 

Each  of  those  positions  will  be  briefly  examined  in  its  order. 

1st.  As  to  the  fact,  what  representations  were  made,  and  what  evi- 
dence is  there  that  the  Legislature  knew  of  the  colonial  act  of  1704? 

The  petition  of  the  corporation  of  Trinity  church,  embodied  in  their 
remonstrance  to  the  present  Legislature,  and  printed  at  p.  28  of  a 
pamphlet  containing  the  charter  and  other  laws  and  proceedings  relating 
to  Trinity  church,  (and  which  will  be  herein  referred  to  as  charter 
'pamphlet,)  states  the  historical  facts  of  its  first  incorporation,  giving  the 
date  of  1697,  and  that  it  was  the  only  parish  church  until  some  time 
after  the  revolution ;  it  then  recites  the  passage  of  the  act  of  1784,  and 
quotes  the  provision  it  contains  descriptive  of  the  corporators.  It 
then  states  that  other  Episcopal  churches  have  been  organized,  and  that 
some  individuals  belonging  to  such  separate  congregations  have  claimed 
a  right  to  vote  for  wardens  and  vestrymen  of  Trinity  church.  It  further 
represents  that  their  corporate  name  has  thus  become  inapplicable — it 
asks  for  an  act  altering  the  name,  and  to  settle  and  obviate  the  ques- 
tions that  might  arise  in  consequence  of  other  Episcopal  congregations 
in  New-York  being  incorporated.  The  petition  is  brief,  but  explicit, 
and  fairly  and  truly  presents  the  evils  for  which  a  remedy  was  sought 
It  will  be  seen  that  there  was  a  distinct  and  unequivocal  reference  to  the 
act  of  1784. 

The  law  passed  upon  this  petition  in  1814  contains  a  preamble  re- 
citing the  act  of  1784  by  its  title  in  full;  and  also  reciting  the  act  of 
10th  March,  1788,  enabling  the  corporation  to  take  a  different  name, 
and  which  name,  it  recites  they  pray  may  be  altered :  and  it  makes 
alterations  in  both  those  acts. 

Here  then  is  indubitable  evidence  that  the  acts  of  1784  and  1788 


8 


were  before,  and  known  to,  the  Legislature  which  passed  the  law  of 
1814. 

Now  the  act  of  1788  has  a  preamble,  reciting  the  colonial  act  of  '27th 
June  1704,  and  stating  that  it  was  repealed  in  1784,  but  that  the  corpo- 
ration had  continued  to  use  the  name  therein  specified,  and  thereupon  it 
enacts  that  the  corporation  may  take  and  use  a  new  name, 

And  the  preamble  to  the  act  of  1784  recites  the  charter  of  1697,  it  recites 
and  gives  in  full the  title  of  the  colonial  act  of  1704,  it  declares  that  provi- 
sions in  both  the  charter  and  the  colonial  act  were  inconsistent  with  the 
spirit  and  letter  of  the  constitution  of  this  state,  and  the  act  amends  and 
alters  both  of  them.  Again,  the  preamble  to  the  sixth  section  recites  in  full 
the  title  of  the  colonial  act  of  1704,  with  the  date  of  its  passage,  and  in 
the  body  of  the  same  section  again  repeats  the  title  of  that  act,  and  re- 
peals it  absolutely. 

After  this  how  can  it  be  said  that  the  colonial  act  of  1704  was  un- 
known to  the  Legislature  of  1814,  that  it  was  virtually  suppressed  ?  It 
was  impossible  for  any  member  of  the  Legislature  to  vote  upon  the  bill 
understandingly  without  recurring  to  the  acts  of  1784  and  1788,  which 
it  professed  to  amend  and  alter.  And  he  could  not  look  at  those  acts 
without  seeing  that  the  colonial  act  of  1704  was  five  times  recited  or 
distinctly  referred  to.  If  this  be  a  mode  of  suppressing  a  fact,  it  would 
be  desirable  to  know  by  what  means  it  shall  be  made  known. 

But,  says  Mr.  Clark,  the  Legislature  was  misled  by  having  their 
attention  drawn  to  the  charter  of  1697  by  the  pamphlets  of  Bishop 
Hobart  and  Col.  Troup,  and  by  the  omission  of  those  pamphlets  to  re- 
fer to  the  colonial  act  of  1704.  It  must  have  escaped  Mr.  C's  observa- 
tion that  the  pamphlet  of  Col.  Troup  was  never  before  the  Legislature 
at  all,  previous  to  the  passage  of  the  bill  through  the  two  houses.  It 
was  written  and  published  after  Chancellor  Lansing  had  reported  his 
objections  to  the  bill,  to  the  council  of  revision — for  it  contains  those  ob- 
jections at  large,  and  its  object  was  to  answer  and  remove  them.  If. 
therefore,  it  misled  the  Legislature  in  the  passage  of  the  bill,  it  must 
have  been  by  some  singular  ex  post  facto  operation  of  which  there  is 
probably  no  other  instance  on  record. 

As  to  the  pamphlet  attributed  to  Bishop  Hobart,  an  examination  of  it 
will  show  that  he  discusses  the  question  solely  and  exclusively  as  it 
arose  upon  the  3d  section  of  the  act  of  1784,  and  upon  the  act  of  1788. 
There  is  not  one  single  idea  or  remark  founded  upon  the  charter  of  1697, 
and  indeed  that  charter  is  not  mentioned,  nor  is  there  any  allusion  to  it. 
except  that  in  the  commencement  of  the  pamphlet,  the  fact  is  stated  that 


9 


"since  the  year  of  our  Lord  1697  a  corporation  in  the  city  of  New-Yonc 
styled  the  corporation  of  Trinity  church,  have  enjoyed  a  charter,"  &c. 
The  idea  of  its  being  possible  for  Bishop  Hobart  to  make  an  attempt  to  mis- 
lead the  Legislature,  would  require  the  strongest  proof  to  satisfy  any  one 
acquainted  with  the  character  of  that  estimable  man;  and  when  an  in- 
spection of  his  pamphlet  shows  how  utterly  destitute  of  foundation  such 
an  idea  is,  his  friends  and  the  friends  of  truth,  justice  and  fair  dealing, 
will  lament  that  it  should  have  been  so  inconsiderately  avowed. 

Before  dismissing  this  point  let  us  enquire  how  far  the  principle  itself 
is  tenable,  that  a  law  should  be  repealed,  because  the  applicants  for  it 
took  a  wrong  view  of  their  case,  presented  facts  and  arguments  conform- 
able to  that  view,  made  no  mistatement  of  any  fact,  perverted  none,  but 
omitted  to  bring  into  view  a  law  on  the  public  statute  book,  which  they 
honestly  supposed  to  be  repealed,  and  which  law  must  necessarily  come 
under  the  examination  of  any  one  seeking  to  inform  himself  on  the 
subject?  Stripped  of  all  exaggeration  and  amplification,  this  is  really 
the  sum  and  substance  of  Mr.  Clark's  complaint,  assuming  the  correct- 
ness of  all  his  representations  on  the  subject.  And  the  mere  statement 
of  the  case,  would  seem  to  be  sufficient,  without  further  answer. 

The  analogy  which  Mr.  Clark  institutes  at  p.  23  between  acts  of  the  Le- 
gislature and  private  contracts  being  avoided  by  misrepresentation  or  con- 
cealment of  material  facts,  is  unfortunate  for  his  position.  As  to  misre- 
presentation of  any  fact,  it  is  out  of  the  question;  it  is  not  pretended  that 
there  was  any  ;  the  only  allegation  is  that  there  was  a  concealment  of  a  law. 
Chancellor  Kent  in  his  39th  lecture,  thus  states  the  principle:  "If  there 
be  an  intentional  concealment  or  suppression  of  material  facts  in  the 
making  of  a  contract,  in  cases  in  which  both  parties  have  not  equal 
access  to  the  means  of  information,  it  will  be  deemed  unfair  dealing  and 
will  vitiate  and  avoid  the  contract."  "As  a  general  rule,  each  party  is 
bound  to  communicate  to  the  other  his  knowledge  of  material  facts, 
provided  he  knows  the  other  to  be  ignorant  of  them,  and  they  be  not 
open  and  marked,  or  equally  within  the  reach  of  his  observation."  Even 
this  rule,  the  learned  chancellor  in  a  note  admits  to  be  too  broad,  and 
should  be  qualified  so  as  to  require  that  the  party  in  possession  of  facts, 
must  be  under  some  special  obligation,  by  confidence  reposed,  or  other- 
wise, to  communicate  them  truly  and  fairly.  But  take  the  rule  in  its 
broadest  sense,  and  it  will  be  seen  how  decisive  it  is  against  the  position 
of  Mr.  Clark.  For  no  one  will  pretend  that  the  Legislature  "had  not 
equal  access  to  the  means  of  information,"  with  the  applicants,  or  that  a 


2 


10 


printed  and  published  statute  "was  not  equally  within  the  reach"  of  the 
Legislature  as  it  was  of  every  citizen. 

There  are  some  collateral  matters  under  this  head,  which  it  may  be 
well  to  notice,  although  they  have  a  slight  bearing,  if  any,  upon  the 
point. 

At  p.  14,  it  is  remarked,  that  "  it  is  evident  from  the  report  made  by  the 
Attorney-General  to  the  Assembly,  that  his  opinion  ws  founded  solely  on 
the  charter  of  1697  and  on  the  acts  of  1784  and  1788."  The  language  of 
the  Attorney-General  is  this :  "  that  he  has  examined  a  printed  copy  of 
the  charter  granted  in  1697  to  the  Rector,  &c,  and  the  acts  altering  the 
said  charter,  together  with  the  bill,  &c,  and  that  he  is  of  opinion  that 
the  passage  of  the  said  bill  will  not  defeat  or  vary  any  existing  vested 
rights  under  the  said  charter  and  acts."  The  plain  inference  from  this 
language,  strengthened  by  the  reflection  that  no  honest  attorney-general 
would  give  an  opinion  upon  any  subject,  without  examining  all  the  laws 
bearing  on  it,  is  that  Mr.  Van  Vechten  looked  into  the  colonial  act  of 
1704,  as  well  as  the  acts  of  1784  and  1788. 

It  must  excite  some  surprise  to  witness  these  labored  efforts  to  show 
that  the  highly  respectable  applicants  for  the  law  of  1814  made  a  misre- 
presentation, by  a  very  foolish  and  necessarily  futile  attempt  to  conceal  a 
public  law, — that  the  Attorney-General  neglected  the  duty  of  investigat- 
ing the  matter  referred  to  him,  by  omitting  to  look  for  or  consider  a  law 
having  connection  with  that  matter,  and  to  stultify  the  whole  Legislature 
by  the  supposition  that  they  were  not  only  ignorant  of  a  law  now  said  to 
be  so  material,  but  that  they  were  hoodwinked  and  prevented  from  look- 
ing at  it,  by  the  omission  of  the  petitioners  to  quote  it  and  spread  it  be- 
fore them. 

2.  If  the  applicants  presented  their  case  to  the  Legislature  of  1813, 
under  the  belief  that  the  colonial  act  of  1704  was  not  in  existence, — that 
it  had  been  repealed  and  had  no  influence  upon  the  existing  rights  of 
the  corporation,  and  if  the  Legislature  acted  under  the  same  impres- 
sion,— they  were  correct  in  law  and  in  fact ;  and  the  representation  was 
true,  and  the  arguments,  if  any,  founded  upon  it,  were  just  and  sound; 
in  other  words,  assuming  all  that  is  alleged  by  Mr.  Clark,  to  have  been 
represented  to  the  Legislature,  there  was  no  misrepresentation — no 
deception.  Aware  that  the  settlement  of  this  question  of  fact  must  dis- 
pose of  the  first  reason  given  by  him  for  the  repeal  of  the  act  of  1814, 
Mr.  Clark  labors  with  great  ingenuity  to  establish  the  position  that  the 
colonial  act  of  1704  was  not  wholly  repealed  by  the  act  of  1784.  Let  us 
take  his  own  statement  of  the  law :  "The  6th  section  of  that  law"  (of  1784,) 
he  says,  at  p.  84,  "  enumerates  the  colonial  act  of  1704  in  the  list  of  those 


I  J 


that  it  expressly  repeals,  and  this  repeal,  looking  merely  at  the  words 
there  used,  is  absolute  and  total."  One  would  suppose  that  after  such 
an  admission,  the  question  would  be  at  rest.  But  the  report  under  con- 
sideration is  remarkable  for  the  alacrity  with  which  the  most  obsti- 
nate facts  and  the  clearest  provisions  of  law,  are  combatted  and  wrestled 
with.  In  this  instance,  it  is  said  that  this  absolute  and  total  repeal  is  to  be 
restrained  by  what  is  assumed  to  be  the  manifest  intention  of  the  Legisla- 
ture to  repeal  only  such  parts  as  were  inconsistent  with  the  provisions  of 
the  constitution  ;  and  as  some  of  the  provisions  of  the  act  of  1704  were  not 
of  that  character,  a  court  of  law  would  hold  that  they  were  not  included  in 
that  repeal.  If  courts  of  law  adhere  to  what  they  have  already  said,  they 
will  hold  a  very  different  language.  The  fundamental  maxim  quoted  by 
Chancellor  Kent  in  his  20th  lecture,  seems  peculiarly  adapted  to  this  case  : 
Quoties  in  verbis  nulla  est  ambiguitas,  ibi  nulla  expositio  contra  rerba 
expressa,  fienda  est.  Co.  Lift.  147.  Wing.  24;  thus  translated  in  Branch's 
Principia:  When  in  the  words  there  is  no  ambiguity,  no  exposition  con- 
trary to  the  words  is  to  be  made.  The  judges  said  in  Edrick's  case,  (5 
Rep.  118,5,)  "that  they  ought  not  to  make  any  construction  agains1 
the  express  letter  of  the  statute  ;  for  nothing  can  so  express  the  meaning 
of  the  makers  of  the  act,  as  their  own  direct  words."  In  1  Term  Rep. 
51,  Justice  Ashurst  sa}'S,  "  it  is  safer  to  adopt  what  the  Legislature  have 
actually  said,  than  to  suppose  what  they  meant  to  say."  These  authorities 
might  be  multiplied  almost  indefinitely  to  show  that  interpretation  ac- 
cording to  a  supposed  intent,  is  not  to  be  indulged  against  the  plain 
words  of  a  statute,  and  that  it  is  only  when  the  words  are  in  themselves 
ambiguous,  or  where  they  would  produce  manifest  injustice,  or  be  ab- 
surd, that  it  is  allowable  to  examine  the  intent. 

A  further  reason  given  by  Mr.  Clark  for  denying  that  the  colonial  act 
of  1704  was  repealed  by  the  act  of  1784,  is  that  the  latter  act  would 
thereby  be  rendered  contradictory  in  its  various  provisions.  The  first 
section,  after  repealing  certain  parts  of  the  charter  of  1697,  and  of  the 
colonial  act  of  1704,  declares  that  "  nothing  in  this  law  shall  be  in  any 
wise  construed  to  annul,  injure,  repeal  or  make  void  the  said  charter  or 
the  said  law,  where  the  same  are  not  inconsistent  with  the  constitution 
of  this  State."  And  yet,  it  is  admitted  by  Mr.  Clark  that  in  a  subse- 
quent section,  the  6th,  the  colonial  act  of  1704  is  repealed  by  words  that 
are  "  absolute  and  total,"  and  that  the  repeal  is  "  entire  and  absolute  in 
its  terms."*    To  prevent  this  manifest  contradiction,  which  however 

*  If  it  were  at  all  necessary  to  account  for  this  contradiction  in  the  act  of  1784,  it 
might  be  done  by  reference  to  the  Assembly  Journals  of  that  year,  p.  47,  where  it  ap- 
pears that  the  bill  was  amended  in  committee  of  the  whole  of  that  house;  and  by  re- 


12 


is  beyond  the  power  of  human  ingenuity,  he  would  restrict  the  "absolute 
terms,"  and  make  that  a  "partial"  repeal  which  he  admits  to  be  entire. 
But  a  contradiction  in  a  statute  is  a  much  less  evil,  than  a  defiance  of 
the  expressed,  explicit  and  undenied  will  of  the  Legislature;  and  the 
rule  in  such  cases  has  been  settled  for  centuries,  and  adhered  to  with- 
out ever  being  questioned  by  any  judicial  decision.  That  rule  was  given 
in  the  case  of  the  Attorney-General  vs.  The  Governor  and  Company  of 
Chelsea  Water -works,  reported  in  Fitzgibbon,  p.  195 ;  it  is  that  a  proviso 
directly  repugnant  to  the  body  or  provision  of  the  act,  shall  stand,  and 
be  held  to  be  a  repeal  of  the  preceding  enactment,  by  analogy  to  the 
well  known  rule  of  construction  applicable  to  testamentary  instruments — 
that  a  later  clause,  if  inconsistent  with  a  former  one,  expresses  the  last 
intention,  and  revokes  the  preceding  expressions.  The  rule  as  quoted 
from  Fitzgibbon  is  given  in  Bacon's  Abridgement,  title  Statute,  and  in  2 
Dwarris  Stat.  675,  as  the  undoubted  law.  In  the  case  of  the  King  vs. 
the  Justices  of  Middlesex,  2  Barn,  and  Ad.  818,  Chief  Justice,  Lord 
Tenterden  quoted  and  referred  to  the  same  decision  in  Fitzgibbon  as  the 
existing  law,  and  he  applied  the  principle  that  the  latest  enactment 
speaks  the  last  intention  of  the  makers,  to  the  case  before  the  court, 
where  two  contradictory  acts  wrere  passed  in  the  same  session  of  parlia- 
ment, to  come  into  operation  on  the  same  day;  and  the  court  accordingly 
held  that  "the  act  which  last  received  the  royal  assent  must  have  the 
effect  of  repealing  the  other." 

The  same  principle  was  again  recognized  and  applied  by  the  English 
court  of  common  pleas,  as  late  as  1835,  in  the  case  of  Paget,  and 
another  vs.  Foley,  reported  in  2  Bingham's  New  Cases,  p.  679.  Hence 
it  will  be  seen  that  courts  do  not  regard  contradictions  in  the  same 
statute,  or  betwreen  different  statutes,  as  any  reason  for  disregarding  the 
plain  words  of  an  act.  They  have  regarded  consistency  in  acts  as  much 
less  important  than  the  certainty  arising  from  a  firm  and  well  settled 
rule. 


ference  to  p.  117,  where  it  appears  that  the  bill  had  also  received  amendments  in  the 
Senate.  \\  e  have  no  direct  evidence  of  the  nature  of  those  amendments,  but  there 
are  strong  reasons  which  would  occupy  too  much  space  here,  for  believing  that  the 
6th  section  was  added  in  the  Senate,  without  adverting  to  the  incongruity  of  a  total 
repeal  of  an  act  which  in  a  previous  section  had  been  repealed  in  part. 

It  is  worthy  of  note  that  three  of  the  acts  repealed  by  the  6th  section  of  the  act  so 
often  emoted,  chap.  33,  which  was  passed  17th  April,  1784,  were  also  repealed  by 
their  titles  in  full,  by  the  act  chap.  38,  which  was  passed  on  the  20th  of  April  1784, 
and  that  another  act,  apart  of  which  was  repealed  by  the  above  chap.  33  was  wholly 
repealed  by  chap.  38.  These  acts  were  pending  at  the  same  time,  as  appears  by  the 
Journal.  Thus  showing  that  it  was  not  deemed  extraordinary  to  repeal  wholly  an  act 
that  was  already  partially  repealed,  or  to  repeat  the  repeal  of  other  acts. 


13 


h  is  not  deemed  necessary  to  add  any  thing  to  this  authorative  rule. 
It  speaks  for  itself,  and  shows,  it  is  believed,  beyond  the  reach  of  dis- 
pute, that  the  colonial  act  of  1704  was  repealed  absolutely,  by  the  act 
of  1784,  notwithstanding  the  declaration  in  a  previous  part  of  the  same 
statute.  Still,  it  may  be  proper  to  refer  to  the  act  of  1788,  which  re- 
cites explicity  that  the  colonial  act  of  1704  was  repealed  by  the  law  of 
1784.  As  the  almost  contemporary  opinion  of  a  whole  Legislature,  it  is 
entitled  to  at  least  as  much  respect  as  that  of  a  single  Senator,  given 
sixty  years  afterwards. 

Of  course  if  any  representation  was  made  to  the  Legislature  of  1813, 
that  the  colonial  act  of  1704  was  repealed — such  representation  was  true, 
and  any  inferences  which  were  drawn  from  the  fact  were  fully  justified. 

And  thus,  it  would  seem  certain  that  the  first  reason  assigned  by  Mr 
Clark  for  the  repeal  of  the  act  of  1814,  that  it  was  procured  under  a 
misrepresentation,  or  a  "  suppression  "  of  the  colonial  act  of  1704,  falls 
to  the  ground. 

Mr.  Clark  contends  (p.  7  and  8)  that  the  charter  of  Trinity  church, 
whether  it  consisted  of  the  letters  patent  issued  in  1697,  or  of  the  colo- 
nial act  of  1704,  became  extinct  by  the  revolution,  and  that  the  act  of 
1784  was  necessary  "to  reanimate  a  lifeless  corporation."  The  point 
has  so  little  practical  bearing  on  the  questions  at  issue,  as  scarcely  to 
justify  an  extended  discussion,  and  yet  the  position  is  deemed  so  unsound 
that  it  ought  not  to  pass  without  comment.  The  Supreme  Court  of 
this  State  and  that  of  the  United  States,  have  by  a  series  of  decisions 
established  beyond  all  controversy,  that  the  division  of  an  empire  does 
not  in  any  manner  impair  or  affect  private  or  corporate  rights ;  that  our 
revolution  left  the  corporations  created  under  British  authority  in  full 
vigor  and  possessed  of  all  the  franchises  which  could  be  enjoyed  con- 
sistently with  our  forms  of  government.  Terret  vs.  Tayler,  9  Cranch  43,  -50, 
was  a  decision  to  that  effect,  relating  particularly  to  Episcopal  churches 
in  Virginia;  and  the  Society  for  propagating  the  gospel  vs.  New  Haven, 
in  8  Wheaton  481,  as  well  as  Dartmouth  College  vs.  Woodward,  4 
Wheaton,  706,  were  repetitions  of  the  same  doctrine  applied  to  other 
corporations.  See  also  1  John.  Cases,  29,  32 ;  3d  do.  109.  The  idea 
broached  by  Mr.  Clark,  that  it  was  a  condition  of  the  charter  of  Trinity 
Church  that  the  corporators  should  remain  in  the  communion  of  the 
church  of  England  as  established  and  governed  by  the  laws  of  England, 
is  believed  to  be  a  mere  assumption  without  any  foundation  other  than  a 
vivid  fancy.  It  might  be  said  with  far  greater  plausibility,  that  the 
political  charters  of  the  cities  of  New- York  and  Albany,  were  subject 
to  the  condition  of  being  under  the  government  of  Great  Britain. 


14 


Trinity  Church  was  a  religious  corporation ;  the  religious  denomination 
of  its  corporators  was  described,  not  prescribed,  as  being  in  communion 
of  the  church  of  England  as  by  law  established.  This  was  a  commu- 
nion of  faith,  doctrine  and  worship,  exclusively  religious,  and  without 
any  necessary  connexion  with  the  civil  government.  In  the  preface  to 
the  Book  of  Common  Prayer  of  the  American  Episcopal  church,  after 
speaking  of  the  alterations  that  had  been  made,  which  it  says  will  ap- 
pear, upon  a  comparison  with  the  book  of  Common  Prayer  of  the 
church  of  England,  proceeds  thus:  "In  which  it  will  also  appear  that 
this  church  is  far  from  intending  to  depart  from  the  church  of  England 
in  any  essential  point  of  doctrine,  discipline  or  worship;  or  further  than 
local  circumstances  require."  This  communion  may  and  does  exist  be- 
tween citizens  and  subjects  of  different  countries,  without  the  least 
reference  to  their  respective  civil  governments ;  as  in  the  case  of  the 
Friends  or  Quakers  in  England  and  America  ;  Presbyterians  in  Scotland 
and  in  our  country  ;  Methodists  m  the  two  countries,  &c,  &c. — and  it 
may  exist  even  when  the  respective  nations  are  at  war.  The  connexion 
of  the  Episcopal  church  in  England  with  the  civil  government  was  a 
mere  incident,  in  no  way  necessary  to  the  religious  character  or  com- 
munion of  the  church,  as  is  evident  from  the  fact  that  in  Scotland  the 
Episcopal  is  not  the  established  church,  and  yet  its  members  are  in  com- 
munion with  the  church  of  England,  and  the  latter  are  in  communion 
with  the  Scottish  church.  The  same  relations  exist  between  the  Epis- 
copal church  in  America  and  that  in  England;  our  ministers  preach  in 
their  churches;  theirs  officiate  in  ours ;  the  members  of  both  reciprocally 
partake  of  the  communion  in  the  churches  of  both  nations — and  there 
never  has  been  an  interruption  of  that  communion  with  the  church  of 
England,  by  the  corporators  of  Trinity  church  from  1697  to  this  day. 
The  object  of  Mr.  Clark  in  the  remarks  which  have  just  been  quoted, 
was  to  exhibit  the  necessity  of  the  act  of  1784,  "  to  reanimate,  as  he  terms 
it,  a  lifeless  corporation."  The  propriety  of  such  an  act  and  the  neces- 
sity of  some  of  its  provisions  are  admitted,  and  it  was  certainly  desirable, 
considering  the  circumstances  in  which  the  corporation  had  been  placed 
by  the  Avar  of  the  revolution  and  the  occupation  of  the  city  by  British 
troops,  that  the  now  independent  State  should,  by  a  legislative  act,  remove 
all  doubts,  settle  conflicting  claims,  and  enable  Trinity  Church  to 
execute  its  high  mission.  The  act  of  1784  was  passed  for  this  purpose. 
It  does  not  contain  any  terms  of  incorporation,  but  it  attains  the  object 
of  reviving  that  which  had  been  in  abeyance,  and  of  imparting  to  it 
new  vigor,  by  appointing  of  its  own  authority  a  set  of  wardens  and  ves- 
trymen, (sect.  4,)  by  declaring  who  should  thereafter  be  corporators,  (sect. 


♦ 


15 

3,)  and  by  confirming  its  original  charter  after  amending  and  modifying  it 
to  the  altered  circumstances.  (Sec.  land  2.)  This  revival,  recognition  and 
establishment  of  the  charter  of  1697  was  effected  by  the  first  section  of  the 
act,  which,  after  reciting  that  charter  and  the  colonial  act  of  1704,  provides 
that  "nothing  in  this  law,  and  no  non-user  or  mis-user,  &c.  shall  be  con- 
strued to  annul,  injure,  repeal,  or  make  void  the  said  charter,  or  the  said 
law,  &c.  where  the  same  are  not  inconsistent  with  the  constitution  of  this 
State."  Can  language  be  more  explicit  in  recognising  the  existence  of  the 
charter,  and  the  validity  of  all  its  provisions,  excepting  those  inconsistent 
with  the  constitution  of  this  State  ? 

How  needless  was  the  exception  if  the  other  provisions  were  invalid  ? 
Is  this  not  precisely  the  case  in  which  the  sound  and  venerated  maxim 
of  the  common  law  and  of  common  sense  applies  with  irresistible  force  ? 
Exceptio  probat  regulam  de  rebus  non  exceptis;  11  Co.,  41.  An  excep- 
tion proves  the  rule  in  things  not  excepted. 

If  then,  the  position  of  Mr.  Clark  at  p.  5,  be  correct  that  it  was  indis- 
pensable to  enable  Trinity  Church  to  continue  a  living  and  active  corpo- 
ration, that  an  act  of  the  Legislature  should  be  passed  designating  the 
corporators,  and  defining  the  mode  of  their  action ;  and  that  this  was  the 
object  of  the  act  of  1784,  it  will  be  seen  at  once  by  an  inspection  of 
that  act  that  it  wholly  fails  in  this  object  unless  it  be  coupled  with  the 
charter  of  1697,  or  the  colonial  law  of  1704  ;  for  the  act  itself  contains 
nothing  defining  the  mode  of  action  of  the  corporators  ;  it  confers  no 
corporate  powers  in  direct  terms ;  it  does  not  even  fix  the  number  of  ves- 
trymen, nor  the  time  of  their  election,  nor  does  it  prescribe  any  of  their 
duties  or  powers.  But  it  couples  itself  with  the  charter  of  1697,  as  already 
explained,  corrects  its  defects  and  engrafts  its  own  provisions  upon  it,  and 
thus  sets  the  machinery  in  motion.  It  is  submitted  that  this  is  a  fair,  just 
and  reasonable  view  of  that  act,  and  the  only  one  which  renders  it  what  Mr. 
Clark  says  it  should  have  been  and  was  intended  to  be. 

In  a  note  to  his  report  at  p.  19,  Mr.  Clark  says  "if  the  charter  of  1697 
were  superseded  or  abrogated  by  the  subsequent  act  of  the  Assembly, 
(the  colonial  law  of  1704,)  express  words  were  palpably  necessary  to 
create  or  restore  its  validity.  The  mere  repeal  of  the  colonial  act  would 
not  have  that  effect."  It  is  utterly  denied  that  the  colonial  law  of  1704 
either  suspended  or  abrogated  the  charter  of  1697.  On  the  contrary  it 
is  maintained  that  it  did  not  create  anew  any  corporation.  It  contains  no 
expressions  of  that  character  usual  in  acts  of  incorporation ;  but  in  the 
very  first  section,  recognized  one  as  then  existing,  by  enacting  that  "  the 
rector  and  inhabitants  of  the  said  city  of  New-York  in  communion  of 
the  church  of  England,  as  by  law  established,  and  their  successors,  shall 


16 


be  capable  of  suing,  &c,  by  the  name  of  the  rector  and  inhabitants  of 
the  city  of  New-York,  in  communion  of  the  Church  of  England,  as  by 
law  established.'"  It  thus  describes  a  rector  as  already  existing,  which 
could  not  be  without  a  lawful  church,  of  which  there  could  be  a  rector. 
In  truth  it  describes  the  corporation  created  by  the  charter  of  1697, 
which,  it  is  therein  declared,  shall  be  a  body  corporate,  by  the  name  of 
"  the  rector  and  inhabitants  of  our  said  city  of  New-York,  in  communion  of 
our  Protestant  Church  of  England,  as  now  established  by  our  laws."  It 
is  obvious  that  these  were  not  intended  as  the  very  words  of  the  name,  as 
the  phrases  "our  city  of  New-York,"  "our  protestant  church,"  and  "estab- 
lished by  our  laws,"  could  not  be  used  with  propriety  in  any  instrument 
executed  by  the  corporation,  or  in  any  contract  with  it  by  any  other  party 
than  the  crown,  or  in  any  act  by  a  third  party.  In  such  cases,  the  word 
"our"  must  necessarily  be  omitted,  and  the  word  "  the"  substituted. 
With  that  change,  which  was  obviously  proper  in  an  act  of  the  colonial 
legislature,  it  will  be  seen  that  the  name  recited  in  the  commencement 
of  the  first  section  of  the  colonial  act  of  1704,  is  identical  with  that  by 
which  the  corporation  is  described  in  the  charter,  with  the  exception  of 
the  word  "protestant,"  which  was  a  pleonasm,  as  the  church  of  England 
was  notoriously  protestant.  It  is  supposed  that  if  the  same  name  had  been 
used  in  a  grant  of  property  to  the  corporation,  or  in  a  contract  with  it,  no  one 
would  have  doubted  that  it  was  well  and  sufficiently  described.  "The  name 
of  a  corporation  frequently  consists  of  several  words,  and  the  transposition, 
interpolation,  omission  or  alteration  of  some  of  them,  may  make  no  es- 
sential difference  in  their  sense."  1  Kyd,  227.  In  Angel  and  Ames  on 
Corporations',  p.  55,  a  variety  of  cases  are  collected,  showing  the  settled 
law  that  any  such  omissions  or  alterations  are  regarded  as  immaterial. 
If  to  these  considerations  be  added  the  established  rule  that  the  law 
does  not  favor  repeals  by  implication,  and  that  two  statutes  are  to  stand 
together  if  possible,  (9  Cowen,  437,)  it  will  be  a  very  fair  conclusion  that 
the  colonial  act  of  1704  did  not  supersede  or  abrogate  the  charter  of 
1697  any  further  than  as  their  provisions  were  inconsistent,  which  was 
the  case  in  a  very  few  and  not  important  particulars. 

But  Mr.  Clark, assuming  that  the  charter  was  already  abrogated  by  the 
colonial  act  of  1704,  says  that  "  express  words  were  palpably  necessary  to 
create  or  restore  its  validity.  The  mere  repeal  of  the  colonial  act  would 
not  have  that  effect."  To  this  it  is  replied  that  there  is  no  doctrine  bet- 
ter settled  by  a  uniform  current  of  decisions,  and  by  the  acknowledgment 
of  all  the  elementary  writers  than  this,  which  is  thus  given  in  the  words 
of  Blackstone  :  "If  a  statute  that  repeals  another  is  itself  repealed 
aftenvnrds,  the  first  statute  is  hereby  revived  without  any  formal  words 


17 


for  that  purpose."  1  Comm.  90.  If  the  rule  had  been  drawn  up  ex- 
pressly to  negative  Mr.  Clark's  position,  it  could  not  have  been  more 
direct.  In  7  Cowen,  536,  537,  the  rule  is  recognized  and  applied ;  and 
probably  hundreds  of  cases  might  be  cited  where  it  has  been  adopted 
and  enforced. 

It  may  be  expected  in  this  connexion,  that  some  remarks  should  be 
made  upon  the  observations  of  Mr.  Clark,  at  p.  5,  6,  &c,  intended  to 
show  that  the  colonial  act  of  1704  was  regarded  by  the  government  and 
the  corporation  itself  as  the  only  law  which  governed  the  corporation 
previous  to  the  act  of  1784.  So  far  as  any  practical  results  could  follow 
from  the  admission,  it  might  with  perfect  safety  be  admitted.  For  it 
has  been  shown,  it  is  hoped  satisfactorily,  that  the  colonial  act  was  re- 
pealed in  1784,  and  if  the  charter  of  1697  had  been  overshadowed  by 
or  merged  in  it,  it  was  revived  and  restored  in  full  force  by  the  same  act 
of  1784.  It  therefore  becomes  quite  immaterial  to  enquire  how  it  was 
regarded  during  the  time  it  was  in  operation.  But  the  statements  of 
Mr.  Clark  upon  this  point  are  deemed  so  erroneous,  that  a  brief  space 
may  properly  be  devoted  to  their  correction.  It  is  said  at  p.  6,  that  the 
grant  made  in  1705  is  made  to  the  exact  corporate  name  that  the  act  of 
1704  imposed,  and  that  the  preamble  of  the  grant  refers  to  this  act  as 
the  sole  origin  of  the  corporate  power  of  the  corporation.  This  is  be- 
lieved to  be  an  exaggeration  of  the  language  of  the  preamble.  It  was 
natural  that  the  reference  should  be  to  the  more  recent  charter,  which 
had  passed  but  a  year  previous,  conferring  full  powers  to  take  and  hold 
real  estate  ;  which  reference  was  sufficient  for  all  the  purposes  of  the 
recital,  and  it  would  have  been  mere  surplussage  to  refer  to  the  charter 
of  1697.  Surely  it  is  a  strained  inference  to  draw  from  the  mere  nam 
ing  of  one  out  of  two,  or  out  of  a  dozen,  acts  of  incorporation,  that  the 
others  were  obsolete  or  extinct;  and  as  to  the  name  of  the  corporation, 
it  has  already  been  shown  that  it  was  sufficiently  identical  in  the  two  in- 
struments, to  prevent  any  ambiguity. 

It  is  said  in  the  same  page  that  the  right  of  voting  for  wardens  and 
vestrymen  of  Trinity  Church  was  limited  in  its  actual  exercise  to  the 
communicants  of  the  church.  And  then  it  is  averred  that  this  limitation 
is  to  be  found  only  in  the  act  of  1704.  Now  it  is  asserted  with  great 
confidence  that  the  limitation  of  the  electoral  right,  so  far  as  it  required 
the  voters  to  be  communicants  was  the  same  in  the  charter  of  1697,  and 
in  the  colonial  act  of  1704 ;  and  that  at  all  events  there  was  great  reason 
for  such  a  construction — which  would  of  itself  account  for  the  practice, 
and  be  sufficient  to  preclude  the  inference  attempted  to  be  drawn  from 
the  fact. 

3 


18 


In  the  charter  of  1697,  (p.  9,  Charter  Pamphlet,)  the  qualifications  of 
voters  is  thus  described,  "  by  the  majority  of  the  inhabitants  of  the  said 
parish  in  communion  as  aforesaid" — the  communion  thus  referred  to,  is 
described  in  an  antecedent  part  of  the  same  clause  as  that  of  "  our  pro- 
testant  church  of  England."  Mr.  Clark  says,  at  p.  6,  that  "  according 
to  the  well  known  doctrines  of  that  church,  its  communion  embraces  all 
its  members ;  in  other  words  all  belong  to  the  communion  of  the  church 
who  have  been  baptized  or  confirmed  therein,  and  have  not  explicitly 
renounced  its  doctrines."  This  statement  is  far  from  being  correct.  By 
the  doctrines  of  that  church,  all  who  have  been  baptised  in  it  are  mem- 
bers of  the  church ;  but  it  is  not  essential  to  membership  that  they 
should  be  communicants.  Members,  not  communicants,  are  not  de- 
scribed in  any  of  its  offices  or  by  its  accredited  writers,  as  being  in  com- 
munion with  it.  The  term  "  communion  "  in  a  religious  sense,  is  pe- 
culiar to  the  episcopal  church,  and  is  not  used  in  the  same  sense  in  the 
written  religious  devotions  or  services  of  any  other  denomination.  Its 
prayer  book  denominates  as  the  "  holy  communion "  that  sacrament 
which  other  churches  call  "  the  Lord's  supper." 

This  word  "  communion  "  may  be  used  in  various  senses :  that  which 
is  intended  by  its  use  in  the  charter  and  in  the  colonial  act,  is  the  one 
very  accurately  given  by  Dr.  Webster,  "  the  act  of  communicating  the 
sacrament  of  the  eucharist ;  the  celebration  of  the  Lord's  supper." 
This  will  appear  from  an  examination  of  different  parts  of  the  colonial 
act  of  1704.  The  3d  section  of  that  act,  (p.  18,  Charter  Pamphlet,) 
provides  that  the  right  of  presentation  to  the  rectorship,  shall  belong 
"  to  the  church  wardens  and  vestrymen  of  the  said  church,  annually 
elected  or  to  be  elected  by  the  inhabitants  aforesaid,  in  communion  as 
aforesaid"  The  5th  section  declares  that  the  rector  and  inhabitants  in 
communion  as  aforesaid,  may  have  a  common  seal.  The  6th  section 
enacts  "  that  it  shall  and  may  be  lawful  for  the  inhabitants  aforesaid,  (as 
yet  described  only  as  being  in  communion)  to  assemble  and  meet  to- 
gether, &c,  and  choose  wardens  and  vestrymen,  communicants  of  the 
said  church,  by  the  majority  of  the  voice  of  the  said  communicants  so 
met,  and  not  otherwise."  Here  the  word  "  communicants"  is  for  the 
first  time  introduced,  and  is  applied  to  inhabitants  in  communion  assem- 
bled and  met  together.  A  subsequent  part  of  the  same  6th  section  pro- 
vides as  follows  :  "  and  in  case  the  church  wardens  or  vestrymen,  or  any 
of  them,  happen  to  die  within  the  year,  it  shall  be  lawful  for  the  inhabi- 
tants aforesaid  in  communion  as  aforesaid,  at  any  time  upon  such  emer- 
gency to  meet  at  the  said  church,  upon  notice  given  by  the  rector  to  elect 
and  choose  others  so  qualified  as  aforesaid,  in  their  room,"  &c.  It  will 
scarcely  be  contended  by  any  one,  that  the  act  intended  to  prescribe  a 


19 


particular  qualification  for  electors  in  the  choice  of  vestrymen  at  the 
annual  election,  and  a  different  one  for  the  choice  of  the  same  officers  at 
a  special  election  to  supply  vacancies.  A  view  of  all  these  sections  would 
induce  a  very  satisfactory  conclusion  that  the  same  description  of  persons 
were  intended,  whether  described  as  "communicants"  or  as  being  "  in 
communion  "  with  the  church  of  England.  The  same  expression  in  the 
charter  of  1697,  being  "  in  communion  "  doubtless  referred  to  the  same 
description  of  persons.  The  view  which  Col.  Troup  takes  of  this  ques- 
tion in  his  pamphlet,  p.  31,  32,  is  evidence  at  least  of  the  construction  of 
intelligent  men  of  that  day.  "  The  language  of  the  charter  and  law, 
(colonial  law  of  1704,)  is  no  less  intelligible  than  its  meaning  is  clear, 
and  the  mind  that  could  doubt  whether  communicants  alone  are  entitled 
to  vote,  must  have  been  incurably  diseased  with  skepticism." 

Mr.  Clark  has  himself  furnished  the  means  of  presenting  a  very  satis- 
factory argument  why  the  Legislature  should  not  interpose  to  repeal  the 
act  of  1814,  even  if  it  were  founded  upon  misrepresentation  and  sup- 
Xrc^ion  of  fact.  He  refers,  at  p.  23,  24,  to  the  provisions  of  the  Re- 
vised Statutes,  authorizing  a  scire  facias  to  be  issued  against  any  corpo- 
ration for  the  purpose  of  vacating  and  annulling  any  act  creating,  &c, 
such  corporation,  "  on  the  ground  that  the  same  was  passed  upon  some 
fraudulent  suggestion  or  concealment  made  by  the  persons  incorporated 
by  such  act,  or  made  with  their  consent  or  knowledge."  {2d  Rev. 
Stat.,  p.  479,  §  13,  2d  edition.)  This  section  is  doubtless,  merely  in 
affirmance  of  the  common  law,  by  which  a  scire  facias  may  issue  out 
of  Chancery  to  repeal  any  patent.  Comyri's  Dig.  Patent,  F,  6.  At 
all  events  the  power  of  the  Court  of  Chancery  over  the  subject 
cannot  be  denied.  5  Cruise's  Dig.,  53,  55.  In  one  of  the  modes 
stated,  either  by  scire  facias  or  by  bill  in  chancery,  the  question 
of  misrepresentation,  of  suppression  of  facts,  can  be  tried  if  the 
Legislature  desire  it,  and  the  consequences  be  visited  upon  those  by 
whose  instrumentality  it  was  produced. 

If  then,  the  memorialists  are  convinced  by  Mr.  Clark's  remarks,  of 
the  evidence  of  such  an  extraordinary  fact,  that  the  Legislature  of  1813 
were  by  some  species  of  mesmerism,  or  other  unaccountable  influence, 
kept  in  profound  ignorance  of  a  law  on  the  printed  statute  book,  referred 
to  in  the  act  which  they  were  amending — a  fact  which,  it  is  presumed, 
the  memorialists  had  not  themselves  discovered  when  they  prepared  and 
presented  their  petitions  for  the  repeal  of  the  act  of  1814,  (for  those  peti- 
tions contain  no  allusion  whatever  to  it ;)  if  they  are  satisfied  of  this 
fact,  and  believe  that  it  ought  to  vitiate  the  legislation  which  was  predi- 
cated on  such  profound  ignorance  and  consummate  folly,  let  them  ask 


20 


the  Legislature  to  authorize  legal  proceedings  to  ascertain  it.  It  is  be- 
lieved that  they  will  meet  with  no  opposition  from  the  corporation  of 
Trinity  Church  or  their  friends. 

II.  The  second  reason  given  by  Mr.  Clark  for  a  repeal  of  the  act  of 
1S14,  (p.  12,  24,  &c.,)  is  that  it  was  the  exercise  of  a  judicial  power,  un- 
warranted and  dangerous.  He  says,  "  it  is  admitted  that  if  it  altered 
the  existing  rights  of  the  corporators,  it  was  a  plain  violation  of  the  Con- 
stitution of  the  United  States,"  for  which  he  refers  in  a  ?wte  to  the  pre- 
face to  the  re-print  of  remarks  on  Trinity  Church  bill,  by  Col.  Troup. 
Now  that  preface  has  been  examined  again  and  again,  with  the  utmost 
care,  and  no  such  admission,  nor  any  approaching  it,  can  be  found. 
Judge  Troup  had  contended  in  his  pamphlet  that  it  was  competent  to  the 
Legislature  to  alter  the  elective  franchise  in  corporations  without  advert- 
ing to  the  distinction  between  public  corporations,  employed  in  the  ad- 
ministration of  the  government,  and  private  eleemosynary  institutions. 
It  was  to  correct  this  omission  that  the  preface  in  question  called  attention 
to  this  distinction,  as  established  in  cases  decided  since  the  appearance  of 
the  pamphlet,  and  as  prohibiting  the  intervention  of  the  Legislature  in 
relation  to  private  corporations  without  their  consent.  The  only  question 
discussed  was  the  right  of  the  Legislature  to  interfere  against  the  will  of 
the  corporation,  for  that  is  the  only  case  to  which  the  constitutional  pro- 
hibition applies.  If  the  contract  be  modified  by  the  consent  of  the  con- 
tracting parties,  the  obligation  is  not  impaired — the  obligation  no  longer 
remains,  it  has  been  removed  by  the  parties.  This  is  a  principle  which 
seems  to  be  kept  entirely  out  of  sight  in  Mr.  Clark's  report.  He  no 
where  notices  the  all-important  fact  that  the  act  of  1814  was  passed  upon 
the  application- of  Trinity  Church  after  full  notice,  and  that  the  law  was 
assented  to  by  them.  Here,  then,  were  the  two  parties  to  the  original 
compact — the  Legislature  representing  the  sovereign  power  of  the  State, 
and  the  corporation,  whose  rights  were  to  be  effected,  concurring  in  an 
act  modifying  that  compact.  Although  this  view  was  most  distinctly  pre- 
sented in  a  pamphlet,  to  which  Mr.  Clark  has  referred  at  p.  18 ;  yet, 
has  he  strangely  overlooked  it,  and  has  discussed  the  whole  question  as 
if  the  act  of  1814  had  been  passed,  under  the  same  circumstances  as  that 
of  the  Legislature  of  New-Hampshire  in  relation  to  Dartmouth  College, 
against  the  will  and  consent  of  the  corporation. 

The  corporation  of  Trinity  Church  represented  to  the  Legislature  that 
in  the  progress  of  events,  a  new  state  of  things  had  arisen  for  which  the 
existing  compact  between  the  government  and  the  corporation  had  not 
provided,  or  that  the  provision,  if  any,  was  imperfect,  and  gave  occasion 
to  doubts  and  controversies.    That  state  of  things  was,  "that  distinct 


21 


corporations  had  been  formed,  each  having  its  own  peculiar  endowments 
and  places  of  worship,  with  rectors  and  other  officers  of  their  own  choice, 
totally  independent  of  any  control  or  interference  of  your  petitioners;" 
and  further,  "  that  individuals  belonging  to  such  separate  congregations, 
have  pretended  to  claim"  the  right  of  voting  in  the  elections  and  regula- 
ting the  affairs  of  Trinity  Church.  They  therefore  pray  for  an  act  "  to 
alter  the  name  of  this  corporation,  and  also  to  obviate  and  settle  the 
questioiis  that  might  arise  in  consequence  of  incorporating  other  Episcopal 
congregations  in  the  city  of  New- York."  Let  it  be  observed  that  the 
petition  asked  for  no  law  that  could  affect  any  other  Episcopalians  than 
those  who  belonged  to  such  separate  corporations,  and  the  question  and 
the  only  question  upon  that  point,  on  which  legislative  interposition  was 
asked,  related  to  the  individuals  helonging  to  the  other  corporations.  And 
such  as  will  be  shown  presently,  was  the  only  effect  of  the  law  of  1814, 
and  that  it  left  other  Episcopalians  precisely  where  they  were  before  the 
passage  of  the  act. 

Now,  with  what  propriety  can  it  be  said  that  an  act  passed  for  such  a 
purpose,  to  obviate  and  settle  questions  arising  out  of  an  imperfect  previ- 
ous act  of  the  Legislature,  was  not  legislative  and  was  judicial?  It  was 
an  amendment  of  a  legislative  act  in  particulars,  which  subsequent  cir- 
cumstances had  rendered  ineffectual.  It  is  the  province  of  all  sound 
legislation  to  protect  citizens  in  the  free  and  undisturbed  enjoyment  of 
their  rights  whether  natural  or  acquired.  There  was  an  evil  threatening 
the  peace  and  prosperity  of  a  respectable  body  of  citizens  having  corpo- 
rate rights.  That  body,  by  its  legitimate  representatives,  proposed  a 
modification  of  the  compact  to  the  other  contracting  party,  which  was 
assented  to  and  adopted.  Is  this  the  manner  in  which  courts  of  justice 
proceed  ? 

The  very  act  of  1784,  which  it  was  asked  to  amend,  had  been  passed 
in  the  same  way.    Can  it  be  said  that  that  act  was  judicial? 

An  act  to  remove  doubts  respecting  the  charter  rights  of  the  ministers, 
elders  and  deacons  of  the  Reformed  Dutch  Church  of  the  city  of  New- 
York  was  passed  in  the  same  year,  which  confirmed  elections  and  appoint- 
ments, notwithstanding  their  want  of  conformity  to  the  charter,  and  which 
abrogated  an  important  power  of  assessing  upon  the  members  of  the  church, 
the  expenses  of  maintaining  its  ministers  and  officers,  and  repairing  it, 
&c. 

Numerous  acts  of  a  similar  character  are  found  in  the  laws  of  almost 
every  session  since  the  organization  of  the  government.  Charters  of 
every  description,  charitable,  religious,  banking,  insurance,  library,  manu- 
facturing— have  been,  from  time  to  time,  amended  to  explain  or  correct 


22 


ambiguities  or  errors ;  to  enlarge,  to  modify,  and  to  diminish  the  corporate 
powers  in  matters  affecting  the  interests  of  stockholders ;  upon  the  applica- 
tion of  the  trustees,  directors  or  other  official  representatives  of  such  corpora- 
tions. They  more  or  less  give  construction  to  previous  acts,  and  generally 
supply  their  deficiencies.  Was  the  power  thus  exercised  judicial,  or 
was  it  legislative  ?  A  distinguishing  feature  of  a  judicial  act  is,  that  it 
declares  what  the  law  has  been  and  is,  while  a  legislative  act  operates 
prospectively  and  declares  what  the  law  shall  be.  The  judicial  act 
affects  cases  of  the  like  nature  which  have  already  occurred  and  declares 
the  law  by  which  they  are  to  be  governed. 

Of  the  same  general  character  are  the  statutes  to  be  found  in  our  ses- 
sion laws  so  profusely,  confirming  official  acts  of  justices  and  other  officers, 
irregularly  elected,  or  qualified,  and  acts  confirming  titles  of  heirs  and 
widows  or  of  purchasers  from  them. 

In  the  cases  of  corporations,  the  contract  is  made  between  the  govern- 
ment and  the  body  corporate,  in  its  corporate  charter,  and  not  with  its 
individual  members.  They  are  not  known  individually;  they  are  merged 
in  the  body  politic,  and  are  represented  by  its  officers,  and  necessarily 
bound  by  their  acts.  The  very  principle  of  their  organization  is,  that 
the  majority  control  and  regulate  the  body;  and  the  officers  chosen  by 
the  majority,  are  its  agents. 

In  the  Bank  of  Augusta  vs.  Earle,  13  Peters  587,  Ch.  J.  Taney  giv- 
ing the  opinion  of  the  court,  says,  "Whenever  a  corporation  makes  a  con- 
tract it  is  the  contract  of  the  legal  entity ;  of  the  artificial  being  created 
by  the  charter;  and  not  the  contract  of  the  individual  members." 

Mr.  Willcock  in  his  treatise  on  corporations,  p.  202,  says,  "  The  cases 
which  have  been  determined  on  the  presumption  that  the  right  of  ejec- 
tion may  be  restricted  by  a  new  charter,  are  so  numerous  that  the  ques- 
tion seems  to  be  no  longer  controvertible." 

In  the  case  of  The  Lincoln  and  Ken.  Bank  vs.  Richardson,  1  Green- 
leaf 's  Rep.  7.:  held  by  the  Supreme  Court  of  Maine,  that  the 
stockholders  c  k  ure  bound  by  every  act  which  amounts  to  an 
acceptance  of  the  terms  of  the  charter,  on  the  part  of  the  directors. 

Upon  no  other  principle  than  this,  that  those  representing  a  corporation 
by  virtue  of  their  election,  may  assent  to  modifications  of  the  charter,  in 
good  faith,  can  any  one  justify  the  numerous  laws  to  be  found  extending 
acts  of  incorporation,  enlarging  or  diminishing  the  capitals  originally  au- 
thorized, and  in  a  variety  of  ways  affecting  the  interests  of  individual 
stockholders.  To  dsr.y  the  principle,  would  be  to  sweep  from  the  statute 
books  a  large  portion  of  the  laws  they  contain. 

As  acts  of  :;.ec-7^-&t:on  of  private  eleemosynary  institutions,  are  ad- 
mitted on  all  hands  to  be  contracts  between  the  government  and  the  cor- 


23 


poration,  they  are  subject  to  the  provisions  of  the  constitution  of  the 
United  States,  which  forbids  any  State  from  impairing  the  obligation  of 
contracts.  The  effect  of  this,  is  to  create  an  entire  dissimilarity  between 
charters  granted  by  the  British  parliament  and  those  given  by  our  State 
Legislatures,  in  respect  to  the  power  of  repeal  or  modification.  While 
the  parliament  by  its  constitution  has  such  power,  t  does  not  pos- 

sess it,  without  the  assent  of  the  corporation.  ice  Story  in 

Dartmouth  College  vs.  Woodward,  4  Wheaton,    .  When  a  pri- 

vate eleemosynary  corporation  is  thus  created  by  the  charter  of  the  crown 
it  is  subject  to  no  other  control  on  the  part  of  the  crown,  than  what  is 
expressly  or  implicitly  reserved  by  the  charter  itself.  Unless  a  power  be 
reserved  for  this  purpose,  the  crown  can  not  by  virtue  of  its  prerogative, 
without  the  consent  of  the  corporation,  alter  or  amend  the  charter,  or  di- 
vest the  corporation  of  any  of  its  franchises,  or  add  to  them,  or  add  or 
diminish  the  number  of  the  trustees,  or  remove  any  of  the  members,  or 
change  or  control  the  administration  of  the  charity,  or  compel  the  corpo- 
ration to  receive  a  new  charter.  This  is  the  uniform  language  of  the 
authorities,  and  forms  one  of  the  most  stubborn  and  well  settled  doctrines 
of  the  common  law." 

It  is  submitted  that  this  is  a  full  and  accurate  description  of  the  limita- 
tions of  the  power  of  our  State  Legislatures  under  the  constitution  of  the 
United  States,  and  that  whatever  may  be  predicated  of  the  power  of  the 
crown  in  reference  to  the  corporations  created  by  it,  may  be  of  the  State 
Legislatures.  Now,  in  the  case  of  the  King  vs.  Miller,  in  6th  Term 
Rep.  276,  Lord  Kenyon,  giving  the  opinion  of  the  King's  bench  says, 
"Where  a  corporation  takes  its  rise  from  the  King's  charter,  the  King  by 
granting  and  the  corporation  by  accepting  another  charter,  may  alter  it, 
because  it  is  done  with  the  consent  of  all  the  parties  who  are  competent 
to  consent  to  the  alteration."  This  consent  may  be  given  by  the  corpo- 
rators, or  a  majority  of  them,  expressly  by  some  formal  act ;  or  it  may  be 
presumed  and  inferred  from  repeated  acts  under  the  alterations,  evincing 
their  acquiesence  and  sanction.  In  the  case  of  The  Bank  of  the  U.  S. 
vs.  Danbridge,  12  Wheaton,  70,  71,  the  judge  delivering  the  opinion  of 
the  Supreme  Court  of  the  U.  S.,  says:  "In  short  we  think  the  acts  of 
artificial  persons  afford  the  same  presumptions,  as  the  acts  of  natural 
persons.  Each  affords  presumptions  from  acts  done,  of  what  must  have 
preceded  them,  as  matters  of  right,  or  matters  of  duty."  "  So  in  rela- 
tion to  the  question  of  the  acceptance  of  a  particular  charter  by  an  exist- 
ing corporation,  or  by  corporators  already  in  the  exercise  of  corporate 
functions,  the  acts  of  the  corporate  officers  are  admissible  evidence  from 
which  the  fact  of  acceptance  may  be  inferred.    It  is  not  indipensable  to 


24 


show  a  written  instrument  or  vote  of  acceptance  on  the  corporation  books. 
It  may  be  inferred  from  other  facts,  which  demonstrate  that  it  must  have 
been  accepted."  In  the  present  case,  the  acts  not  only  of  the  corporate 
officers,  but  of  the  corporators,  in  acquiescing  in  the  provisions  of  this 
act  of  1814,  and  in  a  uniform  course  of  electing  wardens  and  vestrymen 
according  to  those  provisions,  for  more  than  thirty  years,  afford  the  most 
satisfactory  and  conclusive  evidence  of  the  acceptance  of  that  act. 

In  most  cases  it  must  be  impracticable  to  obtain  the  previous  concurrence 
of  all  the  corporators,  to  any  modification  of  a  charter,  and  the  consequence 
of  requiring  it,  would  be  to  prevent  the  most  salutary  amendments,  benefi- 
cial to  the  corporators  themselves.  To  avoid  such  consequences,  the 
constant  practice  has  been  to  amend  and  modify  charters  upon  the  appli- 
cation of  the  officers  of  the  corporation,  in  the  first  instance  ;  and  these 
alterations  are  deemed  to  have  been  assented  to  by  the  whole  body  of 
corporators,  unless  objections  by  a  majority  of  them,  are  made  at  the 
time,  or  within  a  reasonable  period  afterwards. 

The  Legislature  has  repeatedly  acted  upon  this  principle,  in  requiring 
the  assent  of  the  corporation  under  its  corporate  seal,  to  alterations  in  its 
charter,  instead  of  requiring  any  expression  from  the  individual  corpora- 
tors ;  thus  recognizing  the  authority  of  the  corporation  by  its  officers,  to  give 
a  valid  and  binding  consent.  Thus  in  1829,  after  the  passage  of  the  act 
to  create  the  safety  fund,  some  thirty  bank  charters  were  renewed,  and  in 
all  the  acts  of  renewal  the  following  clause  is  found :  "  The  charter  of 
the  said  corporation  shall  not  be  extended  by  virtue  of  this  act  unless  the 
said  corporation  shall,  on  or  before  the  fourth  day  of  January  next, 
cause  to  be  filed  with  the  comptroller  of  this  State,  a  certificate  under  its 
corporate  seal  and  signed  by  its  president  and  cashier,  setting  forth  that 
the  said  corporation  assents  to  become  subject  to  all  the  provisions  of  this 
act."    Session  Laws  of  1829,  p.  465. 

The  act  of  1837,  suspending  certain  provisions  of  law  respecting 
banks,  and  containing  important  restrictions  upon  their  powers,  has  a  si- 
milar provision  in  sec.  8,  that  it  should  not  take  effect  in  relation  to  cer- 
tain banks  until  they  should  signify  their  assent  to  its  provisions,  by  an 
agreement  under  their  corporate  seals,  to  be  filed  with  the  Secretary  of  State. 

Indeed,  so  far  as  the  legislation  of  this  State  bears  upon  the  question, 
there  has  been  one  uniform  invariable  course,  of  which  numerous 
instances  might  be  cited  like  those  already  given,  and  there  is  not  a  soli- 
tary case  to  be  found,  where  the  assent  of  individual  corporators  to  an 
alteration  of  the  charter,  has  been  required.  Surely  such  a  legislative 
construction,  not  questioned  by  any  and  acquiesced  in  by  all,  is  entitled 
to  great  respect  and  consideration. 


25 

In  this  country  the  power  of  a  corporation  to  dissolve  itself  by  the  act 
of  a  majority,  seems  admitted  by  all  judges  who  have  spoken  on  the 
point ;  see  the  cases  collected  in  Angel  and  Ames  on  corporations,  p. 
507.  But  in  this  State  the  question  has  been  put  to  rest  by  a  legislative 
act.  The  3d  article  of  title  4,  chap,  8,  part  3  of  the  Rev.  Stat.,  (vol.  2, 
p.  [382,]  468,)  provides,  that  whenever  the  directors,  trustees,  or  other  offi- 
cers who  have  the  management  of  the  concerns  of  any  corporation,  or  a 
majority  of  them,  shall  for  any  reason  deem  it  beneficial  to  the  interests 
of  the  stockholders,  that  such  corporation  should  be  dissolved,  they  may 
apply  to  the  Chancellor  for  that  purpose,  who  is  authorized  on  such  appli- 
cation to  dissolve  it  accordingly.  This  law  was  originally  passed  in 
1817.  It  is  not  prospective,  but  in  terms  includes  existing  corporations. 
Thus  the  principle  is  most  distinctly  recognized  that  the  directors  and 
trustees  of  corporations  may  affect  the  rights  and  interests  of  stockholders 
by  giving  up  their  charter  without  their  assent  to  the  particular  act,  or 
without  any  other  assent  than  what  is  implied  from  the  nature  of  corpo- 
rate organizations  and  from  the  election  of  directors.  It  is  true  the  Le- 
gislature did  not  think  proper  to  extend  this  particular  law  to  library  socie- 
ties, to  religious  corporations,  or  to  select  schools  or  academies.  But  the 
act  proceeds  upon  the  assumption  that  the  power  exists  in  all  corporations, 
and  regulates  its  exercise.  If  it  did  not  exist,  the  act  could  not  confer 
it,  especially  in  reference  to  corporations  then  in  being.  Indeed  this 
power  of  dissolution  by  surrender  seems  admitted  in  all  the  cases  which 
have  occurred  in  this  State.  She  vs.  Broom,  19  John.,  456.  Briggs  vs. 
Penniman,  1  Hopkins,  300 ;  8  Cowen,  387. 

An  extraordinary  remark  occurs  at  p.  26  of  Mr.  Clark's  report,  which 
certainly  must  have  been  made  without  due  reflection.  It  is,  that  the  act 
of  1814  was  passed  "  without  any  investigation  of  the  facts,  any  exami- 
nations of  the  law,  or  any  hearing  of  the  parties."  Now  it  appears  from 
the  extracts  from  the  proceedings  of  the  two  houses,  appended  to  the 
memorial,  and  to  which  Mr.  Clark  has  referred  in  another  part  of  his 
report,  that  a  remonstrance  against  the  bill  was  presented  to  the  Senate 
on  the  18th  of  March ;  that  it  was  discussed  in  committee  of  the  whole 
both  in  the  Senate  and  Assembly ;  that  it  was  referred  to  the  Attorney- 
General  for  his  opinion  on  the  law  of  the  case  ;  that  it  was  again  debated 
in  the  Assembly,  when  a  motion  to  reject  it  was  negatived  by  a  vote  of 
66  to  23.  It  would  be  difficult  to  furnish  stronger  evidence  respecting 
any  statute  which  has  ever  passed  the  Legislature,  that  the  parties  were 
heard,  that  the  facts  were  investigated,  (indeed,  there  was  not  a  single 
fact  in  dispute,)  and  that  the  law  had  been  fully  and  thoroughly  ex- 
amined. 

4 


'20 


III.  The  third  reason  given  by  Mr.  Clark,  as  stated  at  p.  12,  for  recom- 
mending a  repeal  of  the  act  of  1814,  and  as  expanded  at  p.  29,  30,  &c, 
is,  that  the  terms  of  that  act  dispense  with  certain  qualifications  of  the 
corporators,  that  were  deemed  essential  to  the  character  and  purity  of  Tri- 
nity Church,  and  may  change  the  location  and  character  of  the  corpora- 
tors. 

The  members  of  Trinity  Church  and  other  episcopalians,  will  probably 
be  astonished  to  learn  from  Mr.  Clark's  report  that  the  act  of  1814  "  aban- 
doned all  the  securities"  for  preserving  the  religious  character  of  Trinity 
Church.*  One  of  these  securities  is  said  in  the  report  of  Mr.  Clark,  to 
have  been  found  in  the  name  given  to  the  corporation  by  the  act  of  1788, 
of  "  the  rector  and  inhabitants,  &c,  in  communion  of  the  protestant 
episcopal  church  in  the  State  of  New-York."  A  name  would  be  but  a 
slight  and  feeble  security  against  a  church  abandoning  episcopal  doctrine 
and  worship,  when  its  members  had  renounced  them.  If  there  be  such 
virtue  in  a  name,  the  colonial  act  of  1704  must  come  under  condemna- 
tion. For  the  charter  of  1697  had  called  the  corporation  "  the  rector  and 
inhabitants,  &c,  in  communion  of  our  protestant  church  of  England,  as 
now  established  by  our  laws  ;"  but  the  colonial  act  suppressed  the  word 
"  protestant,"  that  all-important  and  emphatic  word  which  has  found  such 
favor  in  Mr.  Clark's  report,  and  entirely  omitted  it  in  designating  the 
corporation. 

Another  "  security  "  for  the  character  and  purity  of  Trinity  Church, 
Mr.  C.  thinks  is  found  in  the  3d  section  of  the  act  of  1784,  which  de- 
scribes the  persons  who  shall  be  deemed  corporators,  as  those  "  professing 
themselves  members  of  the  Episcopal  church."  This  security,  Mr.  C. 
says  (p.  29)  is  forfeited  by  its  not  being  required  in  the  act  of  1814. 
Mr.  Clark  would  not  venture  on  the  positive  assertion  that  this  qualifica- 
tion is  repealed  by  the  act  of  1814,  but  his  whole  argument  on  this  point 
is  founded  on  that  assumption.  There  is  nothing  in  the  act  of  1814  at 
all  inconsistent  with  the  qualification  in  the  act  of  1784,  requiring  the 
corporators  to  profess  themselves  members  of  the  Episcopal  church.  The 
well  settled  rules  of  construction  (which  will  be  more  fully  noticed  here- 


•  On  this  subject  as  well  as  in  reference  to  the  charge  against  the  committee  of  the  ves- 
try, who  procured  the  passage  of  the  act  of  1814,  that  they  either  through  ignorance  or 
mistake,  omitted  to  inform  the  Legislature  that  the  act  of  1704  was  yet  (as  Mr.  Clark 
supposes,)  a  valid,  existing  law,  it  may  be  proper  to  copy  from  the  printed  remonstrance 
the  names  of  the  gentlemen  who  were  members  of  it,  viz:  Richard  Harison,  David  M. 
Clarkson,  Thomas  Barrow,  Robert  Troup,  Jacob  Le  Roy,  Peter  Aug.  Jay  and  Thos. 
Ludlow  Ogden.  Not  a  few  of  the  memorialists  themselves  must  be  surprised  to  learn 
that  however  recreant  to  their  duty  the  others  might  have  been,  Mr.  Jay  could  have 
consented  to  accept  a  law  (hat  abandoned  all  the  securities  of  Protestantism. 


27 


after)  require  that  all  statutes  on  the  same  subject  shall  be  considered  tor 
gether,  and  full  effect  be  given  to  each ;  and  the  application  of  them  to 
this  case  would  require  that  a  person  offering  himself  to  vote  under  the 
act  of  1814,  should  possess  all  the  qualifications  required  by  all  the  acts 
on  the  subject,  except  those  which  had  been  repealed. 

The  position  heretofore  advanced,  is  also  maintained,  that  the -phrase 
"forming  part  of  the  same  religious  corporation  "  contained  in  the  act  of 
1814,  in  itself  prescribes  the  condition  that  the  persons  offering  to  vote 
shall  be  corporators  according  to  the  laws  then  in  force.  It  is  insisted 
with  entire  confidence,  that  the  expression  "forming  part  of  the  same 
religious  corporation"  applies  to  the  first  antecedent  in  the  same  2d 
section — "all  male  persons,"  and  not  to  "the  chapels  belonging  to 
the  same  " — on  account  of  the  manifest  absurdity  of  saying  that  a 
chapel  forms  a  part  of  a  corporation.  But  it  is  unnecessary  to  spend  time 
in  the  discussion  of  that  question,  because  the  position  already  established 
is  sufficient — that  the  provision  in  question  in  the  act  of  1784  is  not  repealed 
by  the  act  of  1814.  It  is  to  be  hoped  that  this  view  will  relieve  Mr.  Clark, 
and  all  others  from  their  painful  apprehensions  arising  from  their  suppo- 
sition that  Trinity  Church  is  released  from  the  obligation  of  being  a  pro- 
testant  church.  Upon  the  principle  already  stated,  of  considering  all  the 
charters  and  laws  bearing  upon  the  subject,  and  giving  them  full  opera- 
tion, from  the  charter  of  1697  to  the  act  of  1814,  Trinity  Church  must 
not  only  remain  a  protestant  church,  but  must  continue  an  episcopal 
church,  in  communion  with  the  protestant  episcopal  church  in  the  State 
of  New-York  and  in  the  United  States ;  neither  the  corporation  nor  its 
members  can  renounce  the  authority  of  bishops  or  the  canons  or  rubrics  of 
the  church — nor  can  they  dispense  with  or  mutilate  the  prayers  and 
order  of  religious  worship  set  forth  in  the  book  of  Common  Prayer.  All 
the  securities  which  ever  existed  to  protect  the  corporation  and  its  mem- 
bers from  popery  on  the  one  hand  and  from  the  doctrines  and  forms  of 
worship  of  other  religious  denominations  on  the  other,  are  still  maintain- 
ed in  their  original  vigor  and  strength. 

It  is  hoped  that  it  may  be  permitted,  without  disrespect  to  the  senato- 
rial character,  to  express  deep  regret  that  an  official  public  document  like 
the  report  of  a  member  of  a  committee  of  one  branch  of  the  Legislature, 
should  contain  statements  and  intimations  in  relation  to  the  differences  on 
theological  questions,  known  to  exist  in  the  episcopal  church,  exceedingly 
offensive  to  a  portion  of  that  denomination,  and  which  as  they  have  no 
bearing  whatever  on  the  legal  or  constitutional  questions  involved,  are  in- 
troduced without  any  necessity  or  excuse.  Had  the  report  been  prepared 
by  one  of  the  heated  zealots  who  have  made  themselves  conspicuous  for 


2S 


their  intolerance  and  arrogance — who  assume  the  very  infallibility  which 
they  deprecate,  and  seek  to  proscribe  their  brethren  for  an  adherence  to 
what  they  conscientiously  believe  to  be  the  true  and  sound  doctrines  of  their 
church  in  the  days  of  its  greatest  purity — had  the  report  been  prepared 
by  one,  who  in  a  whole  life  of  religious  controversy  had  evinced  anything 
but  charity,  it  could  not  have  contained  more  unjust,  or  more  intolerant 
reflections.  Our  Constitution  has  wisely  prohibited  all  discriminations  on 
account  of  religious  belief,  and  hitherto  our  Legislative  assemblies  have 
adhered  to  the  spirit  of  this  provision,  and  have  scrupulously  avoided  all 
discussions  of  such  topics  as  calculated  only  to  excite  intolerance,  disorder 
and  contention. 

It  is  believed  that  there  are  very  few  instances  in  which  legislative 
reports  have  been  of  a  different  character,  previous  to  that  under  consid- 
eration. The  same  Senator  did  indeed  indulge  himself  in  allusions  of  a 
similar  description  in  a  report  presented  by  him  to  the  Senate  in  1845,  in 
relation  to  changing  the  name  of  a  public  school  society, 

Trinity  Church  has  no  concern  with  these  contentions,  and  as  her  rights 
are  in  no  way  connected  with  them,  they  should  not  be  made  dependent 
on  them.  The  corporation  has  taken  and  will  take  no  part  in  them. 
Individual  members  will  espouse  such  views  as  their  consciences  dictate, 
and  whether  they  be  right  or  wrong,  the  corporate  authorities  have  neither 
right  nor  pretension  to  enquire.  It  is  insisted  that  such  discussions 
are  improperly  mingled  with  the  matters  before  the  Legislature.  They 
divert  attention  from  the  true  merits  of  the  controversy,  and  substitute 
feeling  and  prejudice  for  judgment  and  discretion.  Their  introduction  is 
therefore  deprecated  as  improper  in  itself  and  unjust  to  the  corporation — 
and  to  those  who  are  assailed.  The  latter  are  entitled  under  our  blessed 
constitution  to  "  the  free  exercise  and  enjoyment  of  their  religious  pro- 
fession and  worship  without  discrimination,"  and  without  molestation 
from  any  source,  whether  they  belong  to  either  extreme  of  the  opposing 
parties,  or  are  between  the  two.  "When  Trinity  Church  or  any  other 
corporation  diverts  the  funds  entrusted  to  its  care,  to  uses  and  purposes 
variant  from  the  intentions  of  the  donors  or  the  policy  of  the  State,  the 
judicial  tribunals  will  be  found  armed  with  abundant  powers  to  deprive 
the  offending  corporation  of  all  control  over  those  funds,  and  to  declare 
its  dissolution  for  any  abuse  of  its  franchises.  It  cannot  be  pretended 
that  the  repeal  or  the  continuance  of  the  act  of  1814,  would  either  pre- 
vent such  abuse,  or  add  to,  or  diminish,  the  powers  of  the  courts  to  correct 
it.  How  then  could  the  apprehension,  real  or  affected,  of  such  abuse,  in- 
fluence the  action  of  the  Legislature  upon  the  memorials  presented  to  it  ? 
Those  memorials  presmtrd  no  such  ground  for  legislative  interposition. 


29 


.\nd  it  may  be  supposed  without  questioning  the  astuteness  of  Mr.  Clark, 
that  those  who  prepared  the  memorials  and  the  accompanying  argument, 
were  at  least  as  well  acquainted  with  the  appropriate  grounds  on  which 
their  application  was  to  be  sustained,  as  he  could  be.  The}'  had  no  such 
apprehensions,  or  if  they  had,  they  considered  them  unfit  to  be  presented 
to  the  consideration  of  a  legislative  body. 

There  is  another  omission  in  the  act  of  1814,  which  Mr.  Clark's  report 
presents  as  a  reason  for  its  repeal,  and  which  he  considers  not  quite  so 
alarming  in  its  possible  consequences  as  that  last  mentioned,  and  this  is 
stated  at  p.  31,  to  be  the  omission  to  re-enact  in  the  description  of  the 
corporators,  that  they  must  be  inhabitants  of  the  city  of  New-York.  The 
report  says  that  this  limitation  is  retained  in  the  acts  of  1784  and  17S8, 
but  is  not  found  in  the  act  of  1814.  The  answer  already  given  covers 
this  objection.  All  the  statutes  in  relation  to  Trinity  Church  are  to  be 
considered  and  construed  together,  being  in  pari  materia,  and  no  provi- 
sion in  one  is  repealed,  unless  by  express  words,  or  by  necessary  implica- 
tion in  consequence  of  its  repugnancy  to  a  subsequent  provision.*  It 
might  with  equal  propriety  be  said  that  the  wardens  and  vestrymen  had 
no  authority  to  choose  a  rector,  because  no  such  provision  is  found  in  the 
act  of  1814,  or  that  no  election  could  be  had,  because  neither  the  number 
of  wardens  and  vestrymen  to  be  chosen,  nor  the  time  of  the  election,  were 
provided,  either  in  the  act  of  1784  or  in  that  of  1814.  These  acts  were 
supplements  to  those  previously  existing,  and  provided  for  the  special  cases 
for  which  they  were  intended. 


•These  principles  seem  so  entirely  to  have  escaped  Mr.  Clark's  recollection;  and 
the  whole  of  his  third  reason  for  the  repeal  of  the  act  of  1814,  being-  founded  on  the 
misapprehension  that  the  provisions  of  the  charter  of  1697  and  of  the  act  of  1784,  are 
not  to  be  regarded  in  determining  the  qualifications  of  voters  uuder  the  act  of  1814, 
that  it  seems  advisable  to  quote  a  few  leading  authorities  on  the  subject.  In  his  20th 
lecture,  Chancellor  Kent  says:  "Several  acts  in  pari  materia  and  relating  to  the  same 
subject,  are  to  be  laken  together,  and  compared  in  the  construction  of  them,  because 
they  are  considered  as  having  one  object  in  view,  and  as  acting  upon  one  system; 
and  the  rule  applies,  though  some  of  the  statutes  may  have  expired  or  are  not  referred 
to  in  the  other  acts." 

In  McCartec  vs.  Orphan  Asylum,  9  Co  wen,  437,  it  was  held  by  the  court  for  the  Cor- 
rection of  Errors,  that  "  Two  statutes  shall  stand  together  and  both  have  effect,  if  pos- 
sible; for  the  law  does  not  favor  repeals  by  implication;  and  all  acts  in  pari  materia 
should  be  taken  together,  as  if  they  were  one  law."  1  Black.  Comm.  89,  90.  "And 
an  old  statute  gives  place  to  a  new  one.  But  this  is  to  be  understood  only  when  the 
latter  statute  is  couched  in  negative  terms,  or  where  its  matter  is  so  clearly  repugnant 
that  it  necessarily  implies  a  negative."  "But  if  both  acts  be  merely  affirmative,  and 
the  substance  such  that  both  may  stand  together,  here  the  latter  does  not  repeal  the 
former,  but  they  shall  have  a  concurrent  efficacy." 


30 


The  act  of  1814  was  passed  to  obviate  and  settle  doubts  in  relation  to  a 
particular  qualification  of  persons  who  claimed  to  be  corporators  and 
electors,  and  it  left  all  other  qualifications  as  it  found  them,  with  the 
exception  of  dispensing  with  the  requisite  of  having  paid  for  the  support 
of  the  church. 

There  is  not  a  word  to  be  found  in  it  inconsistent  with  the  qualifications 
that  the  voters  should  be  inhabitants  of  the  city  of  New-York,  and  that 
they  should  profess  themselves  members  of  the  Protestant  Episcopal 
Church.  If  these  were  qualifications  before  the  act,  they  remain  so  still. 
The  fundamental  error  of  the  report  has  been,  that  it  considered  the  2d 
section  of  the  act  of  1814  a  repeal  of  all  former  provisions  on  the  same 
subject;  whereas,  it  is  not  negative  but  affirmative  in  its  character,  and 
specifies  certain  qualifications,  which  those  claiming  to  vote,  should  pos- 
sess. It  dispenses  with  none  that  were  previously  required,  except  the 
single  one  before  mentioned,  of  paying  to  the  support  of  the  church.  It 
is  submitted  then,  that  Mr.  Clark's  third  reason  for  the  repeal  wholly  fails, 
because  the  fact  on  which  it  is  founded  does  not  exist. 

The  affirmative  provision  which  it  contains  requiring  voters  to  be  mem- 
bers of  the  congregation  of  Trinity  church  or  of  one  of  its  chapels,  may 
be  defended  and  justified  upon  general  grounds  without  reference  to  any 
previous  charter  or  law.  The  meaning  of  the  phrase  is  sufficiently 
given  in  Mr.  Clark's  report,  p.  17,  which  says,  "it  denotes  all  persons 
who  usually  assemble  for  public  worship  in  the  same  church."  Can  it  be 
supposed  that  any  church  of  any  denomination  could  be  maintained,  in 
which  the  trustees,  vestrymen,  rector,  and  other  officers  were  to  be  cho- 
sen or  appointed  by  any  others  than  those  who  "  usually  assemble  in  it 
for  public  worship,"  and  who  form  the  body  for  whose  use  the  society 
and  all  its  incidents  were  created  ?  Are  clergymen  in  our  churches  to 
be  called  by  persons  who  are  not  to  hear  them,  and  who  are  to  take  no 
part  in  the  services  of  the  sanctuary  where  they  are  to  officiate  ?  Are 
strangers,  though  belonging  to  the  same  general  denomination,  to  select 
preachers  for  congregations  to  which  they  do  not  belong?  Is  it  not  neces- 
sarily implied  from  the  very  nature  of  any  society  or  association,  that 
those  only  are  to  control  its  affairs  who  belong  to  it  ?  And  shall  a  con- 
gregation of  a  christian  church  be  the  only  exception  ?  It  is  affirmed 
with  entire  confidence,-  that  in  the  absence  of  any  provision  on  the  sub- 
ject in  any  act  of  incorporation,  common  sense  and  common  justice  would 
prescribe  as  the  very  first  and  elementary  qualification  to  a  person's  exer- 
cising any  control  in  the  affairs  of  any  congregation,  that  he  should  be- 
long to  it,  and  be  a  member  of  it.  And  the  act  of  1814  therefore,  very 
properly  inserted  a  declaration  to  that  effect,  that  the  members  of  other 


31 


congregations  might  not  presume  to  interfere  with  one  to  which  they  did 
not  belong.  And  this  was  the  sole  and  whole  effect  of  this  provision. 
It  is  not  correct,  as  intimated  at  p.  27  of  Mr.  Clark's  report,  that  "  all 
that  class  of  Episcopalians  in  the  city  of  New- York  who  are  not  members 
of  any  congregation  as  such  in  the  city,"  are  excluded  from  voting  by 
the  act  of  1814.  They  have  the  same  right  to  qualify  themselves  to  be 
voters  which  they  had  before  that  act ;  and  if  they  are  excluded  from 
voting,  it  is  because  they  do  not  choose  to  avail  themselves  -of  the  right. 
It  might  with  equal  truth  be  affirmed  that  they  were  excluded  by  the  act 
of  1784,  which  required  them  to  hold  pews  or  be  communicants.  Any 
qualification  whatever  that  should  be  prescribed,  would  exclude  them 
until  they  complied  with  it.  They  are  excluded  by  the  act  of  1814  pre- 
cisely as  presbyterians,  methodists,  and  members  of  other  denominations 
are,  and  in  no  other  way,  namely :  so  long  as  they  refuse  to  participate 
in  the  privileges  offered  them,  by  refusing  to  become  members  of  the 
congregation.  It  is  the  result  of  their  own  choice — the  law  does  not 
exclude  them.  If  they  are  episcopalians,  they  have  but  to  become  mem- 
bers of  the  congregation  of  Trinity  Church,  "to  worship  usually"  in  that 
church  or  in  one  of  its  chapels,  and  they  at  once  become  corporators  and 
voters  upon  complying  with  the  other  conditions  prescribed  by  the  several 
acts.  But  from  episcopalians  who  do  not  belong  to  any  corporation,  no 
complaint  is  heard.  The  memorials  to  the  Legislature,  proceed  wholly 
from  those  who  belong  to  other  incorporated  episcopal  churches,  and  are 
members  of  the  congregations  of  those  churches.  These,  and  these 
only,  ask  that  all  the  guaranties  which  secure  to  the  members  of  the 
corporation  of  Trinity  church,  the  government  and  control  of  their  own. 
affairs,  should  be  swept  away,  and  its  elections  thrown  open  to  an  indis- 
criminate multitude,  belonging  to  other  churches,  or  belonging  to  none, 
upon  no  other  qualification  than  that  they  are  inhabitants  of  New- 
York,  and  profess  to  belong  to  the  Episcopal  church.  This  is  in  truth 
the  result  which  all  their  representations  and  arguments  are  calculated  to 
produce. 

It  is  time  to  hasten  to  a  conclusion.  Mr.  Clark's  report  urges  the  repeal 
of  the  whole  act  of  1814  instead  of  the  particular  sections  complained  of 
by  the  memorialists.  The  third  section,  confirming  grants  made  by  the 
church,  the  report  considers  useless  if  such  grants  were  originally  valid ; 
and  if  they  were  not  valid,  that  then  the  Legislature  had  no  right  to  con- 
firm them.  The  best  answer  to  this  remark  is  furnished  by  the  second  sec- 
tion of  the  bill  which  Mr.  Clark  has  reported,  which  forbids  the  corporation 
from  disputing  the  validity  of  any  of  its  grants  before  or  since  the  passage 
of  the  act  of  1814,  by  which  it  would  have  been  bound  under  that  act  ; 


32 


which  is  but  a  circumlocutive  manner  of  declaring  that  the  grants  shall 
be  valid  ;  thus  re-enacting  the  identical  provision  he  proposes  to  repeal. 
A  stronger  admission  of  the  propriety  of  the  third  section  of  the  act  of 
1814  could  not  be  made.  The  fourth  section  of  the  act  of  1814,  stands 
upon  the  same  ground,  being  only  more  particular  in  referring  specially 
to  the  grants  to  St.  George's  Church.  It  would  also  be  saved  by  the 
second  section  of  Mr.  Clark's  bill.  Would  it  not  have  been  more  simple 
and  direct  not  to  repeal  those  sections  at  all,  than  thus  to  repeal  and  then 
re-enact  them  ? 

The  5th  section  of  the  act  of  1814  authorizes  an  amicable  separation 
of  the  congregation  of  any  chapel  of  Trinity  Church,  by  the  consent  of 
the  congregation  and  the  corporation,  and  provides  that  when  such  agree- 
ment is  made  the  members  of  such  congregation  shall  cease  to  be 
members  of  the  corporation  of  Trinity  Church,  and  may  incorporate 
themselves.  This  section  also,  Mr.  Clark  proposes  to  repeal.  He  would 
not  even  permit  persons  voluntarily  to  renounce  their  connexion  with  Trinity 
Church.  He  would  bind  them  perpetually  to  that  corporation.  He  says, 
11  each  of  these  sections,  (the  3d,  4th  and  5th,)  involves  a  plain  exercise 
of  judicial  power,  or  such  an  alteration  of  the  chartered  rights  of  Trinity 
Church,  as  it  was  not  within  the  competence  of  the  Legislature  to 
establish."  It  is  not  deemed  necessary  to  waste  a  word  on  this  idea  of  a 
prospective  judicial  power  in  authorizing  parties  to  make  future  arrange- 
ments respecting  the  partition  of  their  common  property.  And  as  to 
chartered  rights,  it  has  hitherto  been  supposed  that  when  an  act  is  au- 
thorized to  be  done,  upon  the  consent  of  all  persons  interested,  there 
could  be  no  question  raised  respecting  the  violation  of  the  rights  of  those 
parties.  At  p.  35  the  report  regards  these  sections  as  quite  useless,  and  says, 
that  the  validity  of  the  separations  by  mutual  consent  would  not  be  af- 
fected by  a  repeal  of  them.  But  that  is  a  small  part  of  the  question. 
Future  separations  will  be  as  necessary  hereafter  as  the}r  have  been  here- 
tofore ;  and  the  law  which  allows  them  in  a  peaceable,  orderly  and  regu- 
lar manner,  and  defines  with  precision  the  consequences,  is  in  itself  va- 
luable, and  can  not  be  repealed  without  mischievous  results. 

The  6th  section  of  the  act  of  1814  is  a  general  provision  applicable  to 
religious  corporations  in  the  cities  of  New-York,  Albany  and  Schenec- 
tady, and  intended  to  exempt  them  from  a  very  unnecessary  and  vexa- 
tious burthen.  By  the  10th  section  of  the  general  act  for  religious  cor- 
porations (3d  Rev.  Stat.  p.  210)  the  treasurer  or  trustees  of  churches  in 
New-York,  Albany  or  Schenectady,  (and  it  is  not  required  of  churches  in 
any  other  place,)  are  required  once  in  every  three  years  to  exhibit  an  ac- 
count of  their  estate  to  the  chancellor  or  a  judge  of  the  supreme  court  or 


33 


of  the  county  courts,  and  in  case  of  omission  to  do  so,  the  corporation  is 
dissolved.  Now,  the  6th  section  of  the  act  of  1814  provides  that  this 
account  need  not  be  rendered  unless  the  church  has  acquired  other  lands 
subsequent  to  the  rendering  of  an  account.  Mr.  Clark  has  entirely  mis- 
conceived the  original  act  when  he  speaks  of  the  religious  societies  hav- 
ing been  required  by  it  to  make  an  annual  report  to  the  Legislature. 
There  was  no  such  provision.  The  judge  to  whom  the  account  was  de- 
livered, if  he  found  the  amount  of  the  estate  owned  by  a  church  greater 
than  that  allowed  by  law,  was  to  report  the  inventory  to  the  Legislature. 
It  is  evident  that  the  provision  of  the  act  of  1814  is  just  as  effectual  to 
secure  a  knowledge  of  the  fact  that  any  church  in  the  above  mentioned 
cities  has  exceeded  its  income,  as  the  original  law  ;  and  there  can  be  no 
reason  whatever  for  restoring  that  law.  Still,  if  it  is  deemed  necessary 
or  proper  to  do  so,  it  can  easily  be  done  by  a  separate  act. 

An  unwillingness  is  felt  to  close  these  remarks  without  adverting  to 
a  singular  omission  in  the  report  of  Mr.  Clark,  to  pay  the  least  attention 
to  the  argument  which  was  pressed  before  the  committee  by  those  who 
represented  Trinity  Church,  and  which  has  been  reiterated  on  various  oc- 
casions and  in  various  forms,  that  the  long  acquiescence  for  more  than 
thirty  years  in  the  provisions  of  the  act  of  1814  by  those  immediately  and 
directly  affected,  is  in  itself  a  sufficient  reason  why  the  Legislature  should 
not  now  interpose,  and  by  an  act  of  at  least  doubtful  authority,  throw  open 
the  flood-gates  of  contention  and  litigation.  Why  Mr.  Clark  has  not 
thought  proper  to  discuss  this  point,  does  not  appear. 

A  brief  recapitulation  of  the  points  presented  in  these  remarks  will  be 
convenient  and  perhaps  useful. 

L  Mr.  Clark  repudiates  and  rejects  the  grounds  presented  by  the  memo- 
rialists for  the  repeal  of  the  act  of  1814,  as  wholly  insufficient,  because  a 
repeal  on  those  grounds  would  be  a  judicial  act. 

II.  He  nevertheless  argues  that  the  act  was  unconstitutional  and  should 
be  repealed  in  order  to  remove  an  impediment  to  the  legal  assertion  of 
the  rights  of  the  complainants ;  and  in  effect  calls  upon  the  Legisla- 
ture to  act  judicially  in  determining  whether  those  rights  have  been  in- 
vaded. 

III.  He  pays  no  attention  to  the  fact  that  the  act  of  1814  was  passed 
with  the  assent  and  on  the  application  of  the  corporation  through  their 
legitimate  representatives  ;  and  does  not  discriminate  between  the  power  of 
the  Legislature  to  modify  a  compact  with  the  consent  of  the  other  party, 
as  was  done  in  1814,  and  its  power  to  change  and  alter  the  compact  thus 
modified,  without  the  consent  and  against  the  remonstrance  of  the  other 
contracting  party. 

5 


34 


IV.  He  omits  all  notice  of  the  admitted  fact,  that  all  parties  interested 
in  the  matter  have  acquiesced  in  the  act  of  1814  for  more  than  thirty 
years. 

V.  He  assumes  grounds  for  recommending  the  repeal  of  that  act 
which  never  occurred  to  the  memorialists,  and  which  are  wholly  unfound- 
ed in  fact. 

VI.  The  first  reason  assigned  hy  him  for  the  repeal,  that  the  act  of  1814 
was  procured  by  the  suppression  of  a  statute  printed  among  the  public 
laws,  and  by  misrepresenting  of  that  statute  as  being  repealed,  is  incon- 
sistent in  itself,  is  contradicted  by  the  facts,  and  could  not  be  true. 

VII.  If  any  representations  were  made,  and  if  the  act  of  1S14 
was  passed  on  the  belief,  that  the  colonial  act  of  1704  was  repealed 
by  the  act  of  1784,  they  were  perfectly  true  and  accurate  in  all  re- 
spects. 

VIII.  The  second  reason  assigned  by  Mr.  Clark  for  the  repeal,  that 
the  act  of  1814  was  a  judicial  construction  and  determination  of  the 
rights  of  the  corporators,  is  unsound.  It  was  strictly  legislative,  partak- 
ing in  no  respect  of  the  character  of  a  judicial  decision ;  and  it  was  en- 
entirely  within  the  competence  of  the  Legislature,  in  order  to  cor- 
rect imperfections  and  defects  in  former  laws,  which  rendered  them  in- 
applicable to  a  new  state  of  things  that  had  arisen.  Such  acts, 
passed  with  the  consent  of  the  trustees  or  other  officers  representing  the 
corporation,  and  acquiesced  in  by  the  body  of  the  corporators,  are  coeval 
with  our  government,  and  a  denial  of  the  principle  at  this  day  would 
overturn  hundreds  of  statutes,  affect  vitally  most  important  rights  and 
interests,  and  produce  endless  and  intolerable  confusion. 

IX.  The  third  reason  given  by  Mr.  Clark  for  the  repeal  is,  that  the 
act  of  1814  "  dispenses  with"  qualifications  of  corporators,  essential  to 
the  preservation  of  the  character  and  purity  of  Trinity  Church,  and  may 
change  the  location  and  character  of  the  corporators ; — and  that  the 
change  in  the  name  of  the  corporation  also  exposes  it  to  lose  its  distinc- 
tive religious  character. 

1.  It  is  denied  that  a  change  of  name  can  have  any  such  effect,  when  the 
peculiar  character  of  the  corporation  is  indicated  by  the  provisions  of  its 
charter ;  and  it  is  also  denied  that  a  single  qualification  of  corporators  that 
existed  before  the  act  of  1814  is  "  dispensed  with  "  by  that  act,  except 
the  single  one  of  paying  to  the  support  of  the  church  ;  but 

2.  On  the  contrary  it  is  maintained  upon  the  the  clearest  and  best  set- 
tled principles  of  law,  that  all  the  acts  and  charters  in  relation  to  Trinity 
Church  form  one  body  of  laws  upon  the  same  subject,  which  are  to  have 
full  effect  and  operation  in  every  particular  in  which  they  have  not  been 


35 


repealed  in  express  terms  or  by  a  subsequent  repugnant  provision.  And 
as  there  has  been  no  such  repeal  of  the  qualifications  referred  to,  of  being 
inhabitants  of  New-York  and  professing  to  be  members  of  the  episcopal 
church,  they  are  still  required ;  and  all  the  securities  and  guaranties  of  the 
religious  character  of  Trinity  Church  and  of  the  proper  employment  of 
its  funds,  are  retained  in  full  vigor.  That  the  remedy  for  any  perversion 
of  its  funds,  is  to  be  found  in  the  courts  of  justice,  and  not  in  the  repeal 
of  an  act  which  in  no  way  affects  the  guards  or  remedies  against  such 
perversion. 


